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Digital Economy Act 2017

Contents

Commentary on provisions of Act

Part 1: Access to Digital Services

Section 1: Universal service broadband obligations

  1. Section 65 of the 2003 Act provides powers to make an order specifying the services that fall within the scope of the Universal Service Obligation. This section inserts new subsections into section 65 of the 2003 Act clarifying the government’s powers to include broadband within the scope of universal service.
  2. This section also inserts new sections 72A and 72B into the 2003 Act. Section 72A gives the Secretary of State the power to require Ofcom to review the broadband USO, as appropriate, to ensure that in future it continues to reflect connectivity needs, including whether the minimum speed needs to be updated. Section 72B requires the Secretary of State to direct Ofcom to review the broadband USO if it specifies a minimum download speed that is less than 30 megabits per second and it appears, on the basis of information published by Ofcom, that at least 75% of premises in the UK subscribe to broadband connections or services that provide a download speed of at least 30 megabits per second.

Section 2: General conditions: switching communications provider

  1. Section 51 of the 2003 Act provides Ofcom with powers to set general conditions that apply to communications providers. In particular, section 51(1)(a) enables Ofcom to set conditions for protecting the interests of end-users of public electronic communications services and subsection (2) provides examples of the purposes for which conditions protecting the interests of end-users may be made. This section amends section 51 by inserting new subsection (2)(i) which makes it explicit that the scope of Ofcom’s powers to set general conditions includes the power to require communications providers to adhere to arrangements and processes to facilitate an end-user changing communications provider on request, including but not limited to gaining-provider led processes.

Section 3: Automatic compensation for failure to meet performance standards

  1. Section 51 of the 2003 Act provides Ofcom with powers to set general conditions that apply to communication providers. In particular, section 51(1)(a) enables Ofcom to set conditions for protecting the interests of end-users of public electronic communications services and subsection (2) provides examples of the purposes for which conditions protecting the interests of end-users may be made. This section amends section 51 of the 2003 Act by inserting new subsection 2(da) making explicit the scope of Ofcom’s power to set a condition requiring the payment of compensation by communications providers to end-users – communications providers may be required to pay compensation to an end-user where they fail to meet a specified standard or obligation.

Part 2: Digital infrastructure

Section 4: The electronic communications code

  1. This section repeals the Telecommunications Code in schedule 2 to the Telecommunications Act 1984 and inserts a new Schedule 3A to the 2003 Act, containing the electronic communications code.
  2. Subsections (4) to (9), make consequential amendments to section 106 of the 2003 Act, substituting the term "conduit system", which is not used in the new code, with "system of infrastructure".
  3. Subsection (10) introduces Schedule 2 to the Act, which contains transitional provision, and Schedule 3 to the Act, which contains consequential amendments.

Section 5: Power to make transitional provision in connection with the code

  1. Subsection (1) confers a regulation-making power on the Secretary of State to make amendments related to any transitional provisions in connection with the code coming into force. Subsection (2) provides that the power can be used to amend any legislation, including primary legislation, passed until the end of the Parliamentary Session in which the Act is passed. Where the power is used to amend primary legislation, subsection (3)(a) provides that the affirmative procedure will be required. Otherwise the negative procedure is applied, as provided for by subsection (3)(b).

Section 6: Power to make consequential provision etc in connection with the code

  1. Schedule 3 to the Act provides for consequential amendments that stem from the new code in Schedule 1. This section confers a regulation-making power on the Secretary of State to make further consequential amendments connected to the new electronic communications code, should they be needed. Under subsection (2), this power can be used to amend any legislation, including primary legislation, passed until the end of the Parliamentary Session in which the Act is passed. Where the power is used to amend primary legislation, subsection (5) provides that the affirmative procedure will be required. Otherwise the negative procedure is applied, as provided for by subsection (6).

Section 7: Application of the code: protection of the environment

  1. This section amends section 109 of the 2003 Act so that for regulations made where the Secretary of State has had regard to section 109(2)(b) (the need to protect the environment), the Secretary of State will be treated as having complied with any duty imposed in connection with that exercise of that power by the legislation set out in section 109(2B). 

Section 8: Regulation of dynamic spectrum access services

  1. Subsection (1) inserts Part 2A (comprising sections 53A to 53M) into the 2006 Act, which allows Ofcom to regulate spectrum that is used through technologies that enable "dynamic spectrum access". Dynamic spectrum access services are provided by means of a database that allows the identification of frequencies available for use by radio equipment known as white space devices in spectrum bands authorised by Ofcom.
  2. Section 53A provides that a person who provides, or proposes to provide, a dynamic spectrum access service may be registered by Ofcom. It requires Ofcom to publish criteria by which they will determine if an application for registration should be accepted and also to publish information relating to the restrictions and conditions to which registration may be subject.
  3. Section 53B enables Ofcom to revoke or vary a registration. Subsections (1) and (2) identify the procedure by which Ofcom may revoke or vary a registration. Subsection (2) does not apply if the proposal to vary or revoke is made at the request of or with the consent of the registered person in section 53A.
  4. Section 53C requires Ofcom to establish and maintain a register for the purposes of Part 2A.
  5. Section 53D allows Ofcom to make regulations to provide for Ofcom to charge fees. This will allow Ofcom to recover its costs for registering providers of dynamic spectrum services under section 53A and for activities undertaken on their behalf to facilitate the service they provide, for example, the processing of spectrum availability information etc. Subsection (2) ensures that Ofcom may only charge fees to recover costs where the activities to which a charge is applied are not covered or met by other charging powers.
  6. Sections 53E-53I concern enforcement where a person contravenes the restrictions or conditions subject to which that person is registered. Section 53E enables Ofcom to give a person a notification where they have reasonable grounds for believing that such a person is contravening or has contravened the restrictions or conditions of a registration made under section 53A.
  7. Section 53F concerns penalties under section 53E, including making provision as to the penalty that may be specified in relation to a continuing contravention.
  8. Section 53G details Ofcom’s powers in relation to enforcing a notification issued under section 53E.
  9. Section 53H makes provision about the meaning of the "relevant amount of gross revenue" for the purpose of section 53F.
  10. Section 53I allows Ofcom to require a recipient of a notification under section 53E to provide them with information for the purposes of ascertaining their gross revenue.
  11. Section 53J allows Ofcom to require certain persons, as detailed in subsection (2), to provide information to a person registered under section 53A for the purpose of enabling the registered person to avoid undue interference with wireless telegraphy. Subsections (3) to (4) describe how any such demand for information should be made.
  12. Section 53K allows Ofcom to issue a notification for contravention of a requirement imposed under 53J.
  13. Section 53L makes provision as to penalties under section 53K.
  14. Section 53M details Ofcom’s powers in relation to enforcing a notification under section 53K.
  15. Subsection (2) amends section 111 of the 2006 Act. Section 111 concerns restrictions on the disclosure of information. Section 111(3) sets out disclosures of information to which the restriction in section 111(1) does not apply. Section 111(3) is amended to add to the list of exceptions information disclosed by Ofcom to a person registered under section 53A for the purpose of providing the dynamic spectrum access service in respect of which the person is registered. This will allow Ofcom to share such information with registered providers, without needing the consent of the person from whom the information was obtained.

Section 9: Penalties for contravention of wireless telegraphy licences

  1. This section widens the circumstances in which Ofcom may impose a penalty for contravention of a wireless telegraphy licence.
  2. Subsections (2)-(4) amend section 42 of the 2006 Act and the heading to that section. Subsection (2) amends section 42 so that Ofcom’s power to impose a penalty under section 42 applies where a person is or has been in contravention in any respect of the terms, provisions or limitations of a wireless telegraphy licence. Subsection (3) inserts a definition of "relevant multiplex contravention".
  3. Subsections (5) to (7) amend section 43. Subsection (6) inserts new subsection (2A) into section 43. This specifies the amount of a penalty imposed under section 42 for a contravention that is not a relevant multiplex contravention. The amount of a penalty for a relevant multiplex contravention is dealt with in section 43(1) and (2).
  4. Subsection (8) repeals section 43A. Subsection (12) repeals section 39 of the Digital Economy Act 2010 (which inserted section 43A into the 2006 Act).

Section 10: Fixed penalties under Wireless Telegraphy Act 2006

  1. Paragraph 4 of Schedule 4 to the 2006 Act sets out what information a fixed penalty notice must include. Proceedings against the person to whom a fixed penalty notice is issued cannot be commenced in respect of the offence until the end of the suspended enforcement period. This section amends the minimum suspended enforcement period from ‘one month‘ to ’28 days’ beginning with the day after that on which the fixed penalty notice was issued.

Section 11: Search warrants under Wireless Telegraphy Act 2006

  1. Section 97 of the 2006 Act makes provision for Ofcom’s powers of entry, search and seizure. Subsection 97(3) defines the ‘relevant period’ during which a search warrant may be used.
  2. This section amends the definition of ‘relevant period’ in subsection 97(3) so that a search warrant is valid from when it is granted, and ends three months after the end of the day on which the warrant is granted (except in Scotland or Northern Ireland where the reference to three months is to be read as a reference to one month). It enables Ofcom (or whomever is empowered to act by the warrant) to enter and search a property from the time that the warrant is issued or at any time until the end of a three-month period running from the end of that day.

Section 12: Disposal of seized property under Wireless Telegraphy Act 2006

  1. Section 101 of the 2006 Act makes provision for the detention and disposal of property that has been seized by Ofcom, or by a person authorised by Ofcom. Subsection 101(5) sets out the period of time, following the end of the detention period authorised by subsection 101(2), after which Ofcom may dispose of property that remains in their possession.
  2. This section amends subsection 101(5) so that the time period that Ofcom is required to retain the property is 6 months following the end of the detention period authorised by section 101(2)(a), or, if section 101(2)(b) applies, 6 months following the end of the day on which the proceedings referred to in section 101(2)(b) were concluded.

Section 13: Time limits for prosecutions under Wireless Telegraphy Act 2006

  1. This section inserts new subsections (3A) to (3D) into section 107 of the 2006 Act and extends the time limits for bringing proceedings for those summary offences listed in subsection (3B). The 2006 Act is amended so that the time limit for bringing proceedings for those summary offences listed in subsection (3B) is one year from the end of the day on which the prosecutor becomes aware of evidence which he or she considered sufficient to justify a prosecution for the offence, or, if earlier, three years from the end of the day on which the offence was committed.

Part 3: Online pornography

Section 14: Internet pornography: requirement to prevent access by persons under 18

  1. This section sets out the requirement that a person must not make pornographic material available online to users in the United Kingdom on a commercial basis without sufficient age verification controls in place. It also provides for the Secretary of State to make regulations specifying the circumstances in which pornography is to be regarded as made available on a commercial basis.

Section 15: Meaning of "pornographic material"

  1. This section defines ‘pornographic material’.

Section 16: The age-verification regulator: designation and funding

  1. This section establishes a power for the Secretary of State to designate a person or any two or more persons as the age verification regulator, and sets out that the Secretary of State may revoke such a designation, and designate an alternative person.

Section 17: Parliamentary procedure for designation of age-verification regulator

  1. This section makes provision for the parliamentary procedure that applies where the Secretary of State proposes to make a designation under section 16.

Section 18: Regulator’s power to require information

  1. This section establishes a power for the regulator to request information from a relevant person (an internet service provider or person the regulator believes to be involved in making available pornography on a commercial basis) to enable the regulator to carry out its functions.

Section 19: Enforcement by regulator of sections 14 and 18

  1. This section sets out the powers of the regulator to take enforcement action in relation to sections 14 and 18. Where a person is contravening section 14 (requirement to prevent access by persons under 18), the regulator may impose a financial penalty on the person and/or give that person an enforcement notice. Where a person has failed to comply with a requirement to provide information under section 18 the regulator may impose a financial penalty on that person.

Section 20: Financial penalties imposed by regulator

  1. This section makes further provision about the amount of a financial penalty that the regulator may impose under section 19(1) or (10).
  2. Subsection (8) requires that penalties received must be paid into the Consolidated Fund.
  3. Subsection (9) requires the age-verification regulator to publish guidelines it proposes to follow in deciding the amounts of financial penalties under section 19(1) and (10).

Section 21: Notice by regulator to payment service providers and ancillary service providers

  1. This section enables the regulator to notify payment-services providers and ancillary service providers of those who are in breach of section 14(1) or who are making extreme pornographic material as defined in section 22 available on the internet to persons in the United Kingdom.

Section 22: Meaning of "extreme pornographic material"

  1. This section sets out the meaning of "extreme pornographic material". The definition of "extreme pornographic material" is based on the approach in section 63 of the Criminal Justice and Immigration Act 2008.

Section 23: Regulator’s power to require internet services providers to block access to material

  1. This section provides the regulator with the power to give a notice to any internet service provider requiring it to prevent access by persons in the UK to material that the regulator considers to be in breach of section 14(1), or to be extreme pornographic material as defined in section 22. It is the duty of an internet service provider to comply with any requirement imposed on it by such a notice; that duty is enforceable in civil proceedings by the age-verification regulator.

Section 24: No power to give notice under section 23 (1) where detrimental to national security etc

  1. This section provides that the regulator may not give a notice to an internet service provider under section 23(1) (Age-verification regulator's power to direct internet service providers to block access to material) if it appears to the regulator that the steps or arrangements that would be required of the provider by the notice would be likely to be detrimental to national security, the prevention or detection of serious crime, or the prevention or detection of an offence listed in Schedule 3 to the Sexual Offences Act 2003.

Section 25: Guidance to be published by regulator

  1. This section requires the regulator to publish guidance on the types of age-verification arrangements it will treat as complying with section 14(1) and on the circumstances in which the regulator will treat services as those provided by "ancillary service providers". The regulator’s guidance must be laid before Parliament subject to the affirmative procedure for first exercise of the power and the negative procedure thereafter. The Secretary of State must also approve the guidance on ancillary service providers before it is laid before Parliament.

Section 26: Exercise of functions by the regulator

  1. This section provides discretion for the regulator to exercise its functions in a targeted way, focusing on those commercial providers of online pornography who reach the most number of people or have the largest turnovers.

Section 27: Guidance by Secretary of State to regulator

  1. This section provides the Secretary of State with the power to issue guidance to which the age-verification regulator must have regard. The guidance may cover, for example, the preparation, publication and content of guidance by the regulator. Guidance issued by the Secretary of State under this power must be laid before Parliament.

Section 28: Requirements for notices given by regulator under this Part

  1. This section makes provision about how the regulator can give a notice under Part 3 to a person.

Section 29: Report on this Part

  1. This section requires the Secretary of State to produce a report on the impact and effectiveness of the regulatory framework, within 18 months, but not before 12 months, of the coming into force of Part 3. Before publishing this report, the Secretary of State must consult on the definitions used within this Part and the report must be laid in each House.

Section 30: Interpretation and general provisions relating to this Part

  1. This section sets out definitions for interpreting this Part and also makes some general provisions that are relevant when reading this Part.

Part 4: Intellectual property

Section 31: Lending of e-books by public libraries

  1. The Public Lending Right Act 1979 ("the 1979 Act") provides a right for authors, known as the "public lending right", to receive payments from a central fund in respect of such of their books as are lent out to the public by local library authorities in the United Kingdom.
  2. This section amends the definition of "lent out" in section 5 of the 1979 Act to extend the public lending right to include remote loans of e-books and audio-books from public libraries in the United Kingdom – that is, where those e-books or audio-books are communicated by means of electronic transmission to a place other than library premises.
  3. This section also amends section 40A of the Copyright, Designs and Patents Act 1988 so that copyright in an e-book or e-audio-book (as defined) within the public lending right scheme is not infringed by lending by a public library, provided that the e-book or e-audio-book has been lawfully acquired by the public library, and the lending of that book complies with any purchase or licensing terms that may have been applied to it.
  4. This ensures copyright owners have the right to authorise remote loans by public libraries of e-books and e-audio-books, and maintains the previous right to authorise such loans. This reflects the differences between digital and physical books and enables copyright owners to include technological features and/or terms and conditions in respect of e-books and e-audio-books to mirror physical lending.

Section 32: Offences: infringing copyright online and making available right

  1. Sections 107 (2A) and 198 (1A) of the 1988 Act provided a maximum two-year sentence for online copyright infringement and infringement of a performer’s making available right. The Act amends the maximum sentence for both offences to ten years. The Act also amends offence provisions to introduce an additional mens rea so that a person must either intend to make a monetary gain for himself or another, or know or have reason to believe that his actions will cause loss to the owner of the right or expose the owner to a risk of loss. The Act also replaces the pre-existing concept of ‘prejudicial effect’ with more precise notions of "gain" and "loss" in money.

Section 33: Registered designs: infringement: marking product with Internet link

  1. This section amends the 1949 Act to provide registered design owners with an alternative way of providing notice of their rights. Registered design proprietors would have the ability to mark their products with either the specific registered design number(s) or the web address of a webpage, which clearly associates the product with the relevant registration number(s).
  2. Subsection (3) makes provision to ensure that the registered design numbers can be looked up on a website free of charge.

Section 34: Copyright etc. where broadcast retransmitted by cable

  1. This section repeals section 73 of the 1988 Act, which provided that the copyright in the broadcast of public service broadcaster channels (and the copyright in any work included in the broadcast) was not infringed where the broadcast was retransmitted by cable. This amounted to an exemption for cable providers from paying copyright fees to retransmit the core public service broadcaster channels.

Part 5: Digital Government

Chapter 1: Public Service Delivery

Section 35: Disclosure of information to improve public service delivery

  1. This section creates a permissive gateway enabling specified persons, listed in Schedule 4 (public service delivery: specified persons for the purposes of section 35), to share information for the purposes of a specified objective. Each person who is a party to the share must have been specified in relation to that objective. Subsection (3) sets out a power for the appropriate national authority to add, remove or modify entries on the Schedule by regulations. Subsection (4) provides that in order to be added to Schedule 4, a person must be a public authority or a person providing services to a public authority. Where a specified person is a person providing services to a public authority its power to disclose information is limited to the functions it exercises for that public authority.
  2. In deciding whether to make regulations under subsection (3) to amend Schedule 4, the appropriate national authority must consider the provisions the person(s) in question have in place to ensure secure handling of information shared. In deciding whether to make regulations which remove a specified person from the list of persons permitted to exercise the power, the appropriate national authority must consider whether the person in question has had regard to the code of practice required by section 43, which will set out best practice to be observed in exercising this power.
  3. A specified objective is an objective specified in regulations made by the appropriate national authority. An objective may be specified by regulations only if it meets the criteria at subsections (9), (10) and (12). The requirement for "benefit" under subsection (9)(b) means an offer or delivery of a service or type of financial assistance that is for the good or advantage of the individual or household. The "provision of a benefit" should not result in the loss or withdrawal of a service or type of financial assistance.

Section 36: Disclosure of information to gas and electricity suppliers etc

  1. This section allows the persons specified in Schedule 5 (public service delivery: specified persons for the purposes of sections 36 and 37) to disclose information to licensed gas or electricity suppliers. The disclosure must be for the purpose of assisting people living in fuel poverty by reducing their energy costs, or improving efficiency in their use of energy or improving their health or financial well-being.
  2. The disclosure must be in connection with a fuel poverty measure listed in subsection (3). These measures are grant schemes made under section 15 of the Social Security Act 1990 by the Scottish Ministers or the Welsh Ministers, the Warm Home Discount (which is made under Part 2 of the Energy Act 2010) and the Energy Company Obligation (which is made under various provisions of the Gas Act 1986 and the Electricity Act 1989). These schemes do not extend to Northern Ireland.
  3. Section 142 of the Pensions Act 2008 already enables the disclosure of social security information about persons in receipt of state pension credit in connection with the Warm Home Discount scheme. This has been used to enable electricity suppliers to automatically provide rebates to customers on state pension credit under the Warm Home Discount scheme, without the need for the customers to identify themselves by applying for support. This section will enable other datasets to be used for the purpose of providing support under the Warm Home Discount and Energy Company Obligation schemes or under grant schemes in Scotland and Wales to people living in fuel poverty.
  4. Subsections (5) to (8) enable the "appropriate national authority" to make regulations to amend the list of specified persons in Schedule 5, to amend the list of fuel poverty measures in subsection (3) in connection with which information may be disclosed under the section, and to amend subsection (1) so as to add or remove persons permitted to receive information under the section. See section 45 for how to identify who the appropriate national authority is in particular cases.

Section 37: Disclosure of information by gas and electricity suppliers etc

  1. This section allows gas and electricity suppliers (and any other permitted recipient of information under the previous section) to share information with specified persons, for the purpose of reducing the energy costs of, or improving energy efficiency or the health and financial well-being of, people living in fuel poverty. This section will enable energy suppliers to share details of their customers with the public authority, or with a person providing services to the public authority, who will then be able to ‘flag’ which of the suppliers’ customers should be eligible for assistance under the fuel poverty measure.

Section 38: Disclosure of information to water and sewerage undertakers etc

  1. This section allows the persons specified in Schedule 6 (public service delivery: specified persons for the purposes of sections 38 and 39) to the Act to disclose information to water and sewerage undertakers (an "undertaker") in England and Wales. The disclosure must be in connection with a water poverty measure listed in subsection (3).
  2. The disclosure must be with the intention that it will be used by an undertaker in connection with provision of its charging scheme under section 143 of the Water Industry Act 1991. This section enables undertakers to receive information from specified persons in order to help identify eligibility for support schemes for the purposes of reducing water poverty.
  3. Subsections (5) to (8) enable the "appropriate national authority" to make regulations to amend the list of specified persons in Schedule 6, to amend the list of water poverty measures in subsection (3) in connection with which information may be disclosed under the section and to amend subsection (1) so as to add or remove persons permitted to receive information under the section. See section 45 for how to identify the appropriate national authority in particular cases.
  4. For the purposes of Chapter 1, a person lives in water poverty if they are a member of a household living on a lower income in a home which cannot be supplied with water at a reasonable cost or cannot be supplied with sewerage services at a reasonable cost.

Section 39: Disclosure of information by water and sewerage undertakers etc

  1. This section allows water and sewerage undertakers (an "undertaker"), to whom information may be disclosed under section 38, to disclose information to a specified person (as set out in Schedule 6) for the purpose of assisting people living in water poverty by reducing their water or sewerage costs, improving efficiency in their use of water, or improving their health or financial well-being.
  2. This section enables undertakers to share details of their customers with the specified persons in Schedule 6 to the Act who will then be able to ‘flag’ which of the undertakers’ customers should be eligible for assistance.

Section 40: Further provisions about disclosures under any of sections 35 to 39

  1. This section provides that the person receiving personal information under sections 35 to 39 can only use it for the purpose for which it was disclosed, unless one of the exceptions set out in subsection (2) is engaged. These exceptions are broadly designed to cover situations where it would not be appropriate to adhere to the general rule at subsection (1). For example:
  • paragraphs (c), (d), and (e) enable personal information received under the power to be used for the purposes of the prevention or detection of crime, the prevention of anti-social behaviour criminal investigations, and civil or criminal legal proceedings;
  • paragraph (f) provides exemptions permitting personal information to be used to prevent serious physical harm to a person or loss of human life, and to protect vulnerable adults or children, responding to emergencies, or protecting national security.
  1. The exceptions do not apply to information disclosed by the Revenue and Customs unless the Commissioners for Her Majesty’s Revenue and Customs have provided consent.
  2. Subsections (5) and (6) also provide a definition of personal information for the purpose of Chapter 1.
  3. Subsection (7) provides that information disclosed under this power does not constitute a breach of any obligation of confidence or any other restriction on disclosing the information, however imposed. The statutory override applies to a disclosure between specified persons under the powers in this Chapter, and so existing restrictions on disclosure and offences continue to apply in other circumstances. However, the section expressly provides that information cannot be disclosed under these powers if to do so would breach the Data Protection Act 1998 or would be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016 (or, until such time as those provisions are in force, Part 1 of the Regulation of Investigatory Powers Act 2000).
  4. Subsection (10) provides that sections 35 to 39 do not limit any power to disclose that exists apart from those sections.

Section 41: Confidentiality of personal information

  1. This section is intended to ensure that personal information received under this power may only be onwardly disclosed in narrowly defined circumstances. Subsection (1) provides that a person (P) receiving the information under sections 35 to 39 or any other person who receives that information either directly or indirectly from P cannot further disclose that personal information. The limited circumstances when such personal information can be disclosed without committing an offence under this section are set out in subsection (2). Any person who knowingly or recklessly contravenes this prohibition on further disclosure is guilty of an offence under subsection (4), carrying a penalty of up to two years’ imprisonment, a fine, or both. Other restrictions on disclosure of information – including other criminal offences regarding the unauthorised disclosure of information – may still also apply.
  2. This section does not apply to personal information disclosed by the Revenue and Customs under the powers at sections 35, 36 or 38. Specific conditions that relate to information disclosed by the Revenue and Customs are set out in section 42.

Section 42: Information disclosed by the Revenue and Customs

  1. This section sets out that a person (P) receiving personal information under sections 35, 36 or 38 from Her Majesty’s Revenue and Customs cannot disclose that personal information. This restriction on onward disclosure of personal information provided by the Revenue and Customs does not apply if the Commissioners for Her Majesty’s Revenue and Customs have given general or specific consent for the specific disclosure. Subsection (3) sets out that anyone who breaches this prohibition is guilty of an offence. Subsection (4) sets out a defence to the offence under subsection (3) where the person reasonably believed that the disclosure was lawful or that the information was already lawfully in the public domain. The criminal sanctions set out in section 19 of the Commissioners for Revenue and Customs Act 2005, which prohibits the wrongful disclosure of Revenue and Customs’ information, will apply to an offence under subsection (3).

Section 43: Code of practice

  1. This section sets out that a code of practice must be issued by the Secretary of State or the Minister for the Cabinet Office about the disclosure and use of information under sections 35 to 39. The code of practice must be consistent with the code of practice issued by the Information Commissioner under section 52B of the Data Protection Act 1998.
  2. All persons disclosing or using information under sections 35 to 39 must have regard to the code of practice and to applicable codes of practice that the Information Commissioner has issued under section 51(3) of the Data Protection Act 1998 on the identification and reduction of risks to privacy or on information to be provided to data subjects on the use of information collected from them, in so far as the codes apply. This would include the current codes which relate to privacy impact assessments and privacy notices.
  3. Before issuing or reissuing the code of practice, the Minister must consult the Information Commissioner, relevant Ministers in the devolved administrations, the Commissioners for Her Majesty’s Revenue and Customs and other appropriate bodies and persons as the Minister sees fit. Subsection (4) permits the relevant Minister to revise and re-issue the code of practice. The code of practice will be subject to approval by a resolution in both Houses of Parliament before it is first issued, and subject to the draft negative procedure for every reissue. The code must be laid before the devolved legislatures, when it is issued, and every time it is reissued.

Section 44: Regulations under this Chapter

  1. Before making regulations under this Chapter the appropriate national authority must consult the Information Commissioner, each other person who is an appropriate national authority in relation to regulations under this Chapter, the Commissioners for Her Majesty’s Revenue and Customs and any other persons the appropriate national authority thinks appropriate. The regulations may contain consequential, supplementary, transitional or transitory provisions or savings.
  2. The power to make regulations under sections 35(3), 36(5)(a) or 38(5)(a) to add to Schedule 4, 5 or 6 respectively include power to make provision that restricts onward disclosure similar to that made by section 42 in respect of information disclosed by the Revenue and Customs. This is intended to cover situations where the nature of the body to be added is such that its information would require similar protection to that offered to Revenue and Customs’ information.
  3. All regulations made under this Chapter will be subject to the affirmative resolution procedure, which requires the regulations to be approved by both Houses of Parliament, or the equivalent procedures in devolved legislatures when regulations are made by the devolved administrations.

Section 45: Interpretation of this Chapter etc

  1. This section sets out definitions for interpreting Chapter 1, which include the definitions of devolved bodies for the purposes of this Chapter.
  2. "Scottish body" does not include cross-border public authorities within the meaning of section 88 of the Scotland Act 1998. By virtue of section 127 of the Scotland Act 1998 and paragraph 1 of Part III of Schedule 5 to that Act, cross-border public authorities (including those which only exercise functions in or as regards Scotland) do not fall within the definition, at subsection (3), of "a Scottish public authority with mixed functions or no reserved functions (within the meaning of the Scotland Act 1998)".
  3. The meaning given to "Welsh body" ensures that the definition is consistent with the definition of a devolved Welsh authority in section 157A of the Government of Wales Act 2006.
  4. The meaning given to "Northern Ireland body" captures Northern Ireland Minsters, departments and public authorities whose functions are exercisable only or mainly as regards Northern Ireland and relate only or mainly to matters devolved to Northern Ireland.
  5. Subsection (11) enables the Secretary of State to make necessary amendments to this Chapter in consequence of section 48 (water and sewerage) of the Wales Act 2017. Sections 38 and 39 of the present Act reflect the current "wholly or mainly in Wales" arrangement for the devolution of water supply with Wales. Commencement of section 48(1) of the Wales Act 2017 will align the devolution of water supply with the national boundary. This subsection extends the Secretary of State’s powers under section 69(2) of the Wales Act 2017 to make consequential amendments to primary legislation.

Chapter 2: Civil Registration

Section 46: Disclosure of information by civil registration officials

  1. This section inserts new sections 19AA, 19AB and 19AC, concerning the disclosure of information by civil registration officials, into the Registration Service Act 1953.
  2. New section 19AA allows civil registration officials to disclose any information they hold to another registration official or to a specified public authority. Before disclosing any information a civil registration official must ensure that the information is required by a recipient to fulfil one or more of their functions. If there are restrictions in other legislation which prevent disclosure of certain data then the civil registration official would not be able to share that data.
  3. New section 19AB specifies the public authorities to which a registration official is able to disclose data. Subsections (2) to (7) of this section enable the Secretary of State to make regulations to add, modify or remove public authorities from the list and to make different provision for different purposes. It also sets out the parliamentary procedure for regulations made under this section: they are subject to the affirmative resolution procedure, which requires the regulations to be approved by both Houses of Parliament.
  4. New section 19AC requires the Registrar General to issue a code of practice for civil registration officials to have regard to when considering the disclosure of information under section 19AA. The code of practice must be consistent with the code of practice issued by the Information Commissioner under section 52B of the Data Protection Act 1998.
  5. Civil registration officials disclosing information under new section 19AA must have regard to the code of practice and to applicable codes of practice that the Information Commissioner has issued under section 51(3) of the Data Protection Act 1998 on the identification and reduction of risks to privacy or on information to be provided to data subjects on the use of information collected from them. Subsections (4) to (7) of new section 19AC enable the Registrar General to revise and re-issue the code of practice having consulted with those listed at subsection (5). The code of practice will be subject to approval by a resolution in both Houses of Parliament before it is first issued, and subject to the draft negative procedure for every reissue.
  6. New subsection (1A) to section 19B of the Registration Service Act 1953 allows for the Minister to make regulations for fees to be payable to a civil registration official in respect of the disclosure by the official of information under new section 19AA.

Section 47: Consequential provision

  1. This section enables the Secretary of State to make regulations to amend, repeal or revoke any provision in any Act, which was passed before or in the same session as this Act, as a consequence of the provisions set out in section 46.
  2. Regulations made under this section, which amend or repeal an Act, will be subject to the affirmative resolution procedure which requires the regulations to be approved by both Houses of Parliament. Any other regulations under this section will be subject to the negative resolution procedure.

Chapter 3: Debt owed to the public sector

Section 48: Disclosure of information to reduce debt owed to the public sector

  1. Subsection (1) creates a permissive gateway enabling specified persons, listed in Schedule 7 (specified persons for the purposes of the debt provisions), to disclose information for the purposes of the taking of action in connection with debt owed to a public authority or to the Crown. The section provides a definition of a debt for the purposes of this power, and explains what "the taking of action in connection with debt owed to a public authority or to the Crown" is, namely, identifying and collecting debt, bringing civil proceedings, and taking administrative action as a result of that debt.
  2. Subsection (4) states that the "specified persons" permitted to make use of the power are set out in Schedule 7. Subsection (5) sets out a power for the appropriate national authority to add, remove or modify entries in the Schedule by regulations. Subsections (6) to (8) set out the conditions which a given body must meet before it can be added to Schedule 7. First, the body or type of body must be a public authority or a person providing services to a public authority. Second, the body must require information from a public authority or person providing services to a public authority to improve its ability to identify, manage or recover debt owed to a public authority or the Crown, or hold information that, if shared, would improve a public authority or person providing services to a public authority’s ability to do so. Alternatively, the body must have functions relating to the recovery or management of such debt, the exercise of which may be improved by the disclosure of information to or by that body. Where a specified person is a person providing services to a public authority, its power to disclose information is limited to the functions it exercises for that public authority.
  3. In deciding whether to make regulations under subsection (5) to amend Schedule 7, subsection (10) requires the appropriate national authority to consider the arrangements the persons in question have to ensure secure handling of information. In deciding whether to make regulations which remove a specified person from Schedule 7, the appropriate national authority must consider whether the person in question has had regard to the code of practice under section 52, which will set out best practice to be observed in exercising this power. Subsection (11) sets out consultation requirements in making regulations.

Section 49: Further provisions about power in section 48

  1. Subsection (1) provides that the person receiving personal information under section 48 can only use it for the purpose for which it was disclosed, unless one of the exceptions set out in subsection (2) is engaged. These exceptions broadly are designed to cover situations where it would not be appropriate to adhere to the general rule at subsection (1). Paragraphs (c), (d) and (e) enable personal information received under the power to be used for the purposes of the prevention or detection of crime, the prevention of anti-social behaviour, and for the purposes of criminal investigations and civil or criminal legal proceedings. Paragraphs (f) and (g) set out additional exceptions to the general rule in subsection (1), enabling information to be used for the purposes of protecting vulnerable adults or children, or protecting national security.
  2. The exceptions do not apply to information disclosed by the Revenue and Customs unless the Commissioners for Her Majesty’s Revenue and Customs have provided consent.
  3. Subsection (5) provides a definition of "personal information" for the purposes of Chapter 3 and sets out further conditions on the disclosure and use of personal information. Subsection (7) states that information disclosed under this power does not constitute a breach of any obligation of confidence or any other restriction on disclosing the information, however imposed. The statutory override applies to a disclosure between specified persons under the powers in Chapter 3, and so existing restrictions on disclosure and offences continue to apply in other circumstances. It is, however, expressly set out in subsections (8) and (9) that information cannot be disclosed under this power if to do so would breach the Data Protection Act 1998 or would be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016 (or, until such time as those provisions are in force, Part 1 of the Regulation of Investigatory Powers Act 2000).
  4. Subsection (10) provides that section 48 does not limit any power to disclose information that exists apart from that section.

Section 50: Confidentiality of personal information

  1. This section is intended to ensure that personal information received under this power is only onwardly disclosed in narrowly defined circumstances. Subsection (1) provides that a person (P) receiving personal information under the power at section 48, or any other person who receives that information either directly or indirectly from P, cannot further disclose that information. The limited circumstances when such information can be further disclosed without committing an offence under this section are set out in subsection (2). Any person who knowingly or recklessly contravenes this prohibition on further disclosure is guilty of an offence under subsection (4), carrying a penalty on indictment of up to two years’ imprisonment, a fine, or both. Other restrictions on disclosure of information – including other criminal offences regarding the unauthorised disclosure of information – may still also apply.
  2. This section does not apply to personal information disclosed by the Revenue and Customs under section 48. Specific conditions that relate to information disclosed by the Revenue and Customs are set out in section 51.

Section 51: Information disclosed by the Revenue and Customs

  1. This section sets out that a person receiving personal information under section 48 from the Revenue and Customs cannot disclose that information. This restriction on onward disclosure of personal information provided by the Revenue and Customs does not apply if the Commissioners for Her Majesty’s Revenue and Customs have given general or specific consent for the specific disclosure. Subsection (3) sets out that anyone who breaches this prohibition is guilty of an offence. Subsection (4) sets out a defence to the offence under subsection (3). The criminal sanctions set out in section 19 of the Commissioners for Revenue and Customs Act 2005, which prohibit the wrongful disclosure of revenue and customs information, will apply to an offence under subsection (3).

Section 52: Code of practice

  1. This section sets out that a code of practice must be issued by the Secretary of State or the Minister for the Cabinet Office about the disclosure and use of information under the section 48 power. The code of practice must be consistent with the code of practice issued by the Information Commissioner under section 52B of the Data Protection Act 1998.
  2. All persons disclosing or using information under section 48 must have regard to the code of practice and to applicable codes of practice that the Information Commissioner has issued under section 51(3) of the Data Protection Act 1998 on the identification and reduction of risks to privacy or on information to be provided to data subjects on the use of information collected from them, in so far as the codes apply. This would include the current codes which relate to privacy impact assessments and privacy notices.
  3. Before issuing or reissuing the code of practice, the Minister must consult the Information Commissioner, ministers in the devolved administrations, the Commissioners for Her Majesty’s Revenue and Customs and other appropriate bodies and people as the Minister sees fit. The code of practice will be subject to approval by a resolution of both Houses of Parliament before it is first issued, and subject to the draft negative procedure in respect of every reissue. The code must be laid before the devolved legislatures when it is issued and every time it is reissued.

Section 53: Duty to review operation of Chapter

  1. Subsection (1) sets out that three years after Chapter 3 comes into force, the relevant Minister must, as soon as is reasonably practicable, carry out a review of the operation of the Chapter to determine whether it should be amended or repealed. Before carrying out the review the Minister must publish criteria against which that decision will be made. In carrying out the review, the Minister is required to the consult the Information Commissioner, relevant Ministers from the devolved administrations, and other persons as the Minister considers appropriate.
  2. Under subsection (4), upon completion of the review, the Minister must publish a report setting out the findings, and have a copy of the report laid before Parliament and the relevant bodies in the devolved administrations. The section provides an order-making power for the Minister to amend or repeal the Chapter as a result of the review. Subsection (6) makes clear that the power to amend the Chapter may only be used to improve the effectiveness of the section 48 power, and expressly states that it cannot be used to remove any existing safeguards on use or disclosure of information in sections 49, 50 or 51. Where any such regulations seek to repeal the Chapter or make provision in respect of devolved matters, the Minister must, before making any such regulations, obtain the consent of the relevant devolved administrations. The Minister must seek the consent of HM Treasury before any regulations are made which could affect the disclosure of information by Her Majesty’s Revenue and Customs.

Section 54: Regulations under this Chapter

  1. Before making regulations under this Chapter the appropriate national authority must consult the Information Commissioner, each other person who is an appropriate national authority in relation to regulations under this Chapter, the Commissioners for Her Majesty’s Revenue and Customs and any other persons the appropriate national authority thinks appropriate. The regulations may contain consequential, supplementary, transitional or transitory provisions or savings.
  2. The power to make regulations under section 48(5) to add to the Schedule includes a power to make provision that restricts onward disclosure similar to that made by section 51 in respect of information disclosed by the Revenue and Customs. This is intended to cover a situation where the nature of the body to be added is such that its information would require similar protection to that offered to Revenue and Customs’ information.
  3. Regulations made under this Chapter will be subject to the affirmative resolution procedure, which requires the regulations to be approved by both Houses of Parliament, or the equivalent procedures in the devolved legislatures.

Section 55: Interpretation of Chapter

  1. This section sets out definitions for interpreting Chapter 3, which include the definitions of devolved bodies. As in section 45 for Chapter 1, "Scottish body" does not include cross-border public authorities and the meaning given to "Welsh body" ensures that the definition is consistent with the definition of a devolved Welsh authority in section 157A of the Government of Wales Act 2006.

Chapter 4: Fraud against the public sector

Section 56: Disclosure of information to combat fraud against the public sector

  1. Subsection (1) creates a permissive gateway enabling specified persons, listed in Schedule 8 (specified persons for the purposes of the fraud provisions), to share information for the purposes of taking action in connection with fraud against a public authority. Subsection (2) provides a definition of "fraud against a public authority" for the purposes of this power, and explains what "taking action in connection with fraud against a public authority" is, namely preventing, detecting, investigating, and prosecuting such fraud, and bringing civil proceedings and taking administrative action as a result of that fraud.
  2. Subsection (5) explains that the "specified persons" permitted to make use of the power are set out in Schedule 8. Subsection (6) sets out a power for the appropriate national authority to add, remove, or modify an entry in the Schedule by regulations. Subsections (7) to (9) set out the conditions which a given body must meet before it can be added to Schedule 8. First, the body or type of body being added must be a public authority or a person providing services to a public authority. Second, that person either requires from a public authority (or person providing services to a public authority) information to improve its ability to identify or reduce fraud against it or a public authority to which it provides services, or holds information that would assist other public authorities (or person providing services to a public authority) to do so. Alternatively, the body in question must have functions of taking action in connection with fraud against a public authority, the exercise of which would be improved by it disclosing or receiving information. By subsection (10), where a specified person is a person providing services to a public authority its ability to disclose information is limited to the functions it exercises for that public authority.
  3. In deciding whether to make regulations under subsection (6) to amend Schedule 8, the appropriate national authority must consider the arrangements the persons in question have in place to ensure secure handling of information. In deciding whether to make regulations which remove a specified person from Schedule 8, the appropriate national authority must consider whether the person in question has had regard to the code of practice under section 60, which will set out best practice to be observed in exercising this power. Subsection (12) sets out consultation requirements in making such regulations. Subsection (14) provides a definition of a ‘public authority’ for the purposes of Chapter 4.

Section 57: Further provisions about power in section 56

  1. Subsection (1) provides that the person receiving personal information under section 56 can only use it for the purpose for which it was disclosed, unless one of the exceptions set out in subsection (2) is engaged. These exceptions broadly are designed to cover situations where it would not be appropriate to adhere to the general rule at subsection (1). Paragraphs (c), (d) and (e) provide exceptions enabling data to be used for the purposes of the prevention or detection of crime, the prevention of anti-social behaviour and for the purposes of criminal investigations or civil or criminal legal proceedings. Paragraph (f) provides additional exceptions to the general rule in subsection (1), designed to cover circumstances where it is envisaged that a public authority in receipt of information under the power at section 56 might need to use personal information to protect the public interest or in the interests of an individual’s well-being, namely preventing serious physical harm to a person, preventing loss of human life, safeguarding vulnerable adults or children, responding to an emergency, or protecting national security.
  2. The exceptions do not apply to information disclosed by the Revenue and Customs unless the Commissioners for Her Majesty’s Revenue and Customs have provided consent.
  3. Subsection (5) provides a definition of "personal information" for the purposes of Chapter 4 and sets out further conditions on the disclosure and use of personal information. Subsection (7) states that information disclosed under this power does not constitute a breach of any obligation of confidence or any other restriction on disclosing the information, however imposed. The statutory override applies to a disclosure between specified persons under the powers in this Chapter, and so existing restrictions on disclosure and offences continue to apply in other circumstances. Subsection (8), however, sets out that information cannot be disclosed under this power if to do so would contravene the Data Protection Act 1998 or would be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016 (or, until such time as those provisions are in force, Part 1 of the Regulation of Investigatory Powers Act 2000).
  4. Subsection (10) provides that section 56 does not limit any power to disclose information that exists apart from that section.

Section 58: Confidentiality of personal information

  1. This section provides safeguards to ensure personal information is only onwardly disclosed in narrowly defined circumstances. Subsection (1) provides that a person (P) receiving personal information under the power at section 56, or any other person who receives that information either directly or indirectly from P, cannot further disclose that personal information. The limited circumstances when such information can be further disclosed without committing an offence under this section are set out in subsection (2). Any person who knowingly or recklessly contravenes this prohibition on further disclosure is guilty of an offence under subsection (4), carrying a penalty on indictment of up to two years’ imprisonment, a fine, or both. Other restrictions on disclosure of information – including other criminal offences regarding the unauthorised disclosure of information – may still also apply.
  2. This section does not apply to personal information disclosed by the Revenue and Customs under the power at section 56. Specific conditions that relate to information disclosed by the Revenue and Customs are set out in section 59.

Section 59: Information disclosed by the Revenue and Customs

  1. This section sets out that a person receiving personal information from the Revenue and Customs under section 56 cannot disclose that personal information. This restriction on onward disclosure of personal information provided by the Revenue and Customs does not apply if the Commissioners for Her Majesty’s Revenue and Customs have given general or specific consent for the specific disclosure. Subsection (3) sets out that anyone who breaches this prohibition is guilty of an offence. Subsection (4) sets out a defence to the offence. The criminal sanctions set out in section 19 of the Commissioners for Revenue and Customs Act 2005 will apply to an offence under subsection (3).

Section 60: Code of practice

  1. Subsection (1) sets out that a code of practice must be issued by the Secretary of State or the Minister for the Cabinet Office about the disclosure and use of information under the section 56 power. The code of practice must be consistent with the code of practice issued by the Information Commissioner under section 52B of the Data Protection Act 1998. All persons disclosing or using information under section 56 must have regard to the code of practice and to applicable codes of practice that the Information Commissioner has issued under section 51(3) of the Data Protection Act 1998 on the identification and reduction of risks to privacy or on information to be provided to data subjects on the use of information collected from them, so far as the codes apply. This would include the current codes which relate to privacy impact assessments and privacy notices. Before issuing or reissuing the code of practice, the Minister must consult the Information Commissioner, ministers in the devolved administrations, the Commissioners for Her Majesty’s Revenue and Customs and other appropriate bodies and people as the Minister sees fit. Subsection (4) permits the relevant Minister to revise and re-issue the code of practice. The code of practice will be subject to approval by a resolution in both Houses of Parliament before it is first issued, and subject to the draft negative procedure in respect of every reissue. The code must be laid before the relevant devolved legislatures when it is issued and every time it is reissued.

Section 61: Duty to review operation of Chapter

  1. Subsection (1) sets out that three years after Chapter 4 comes into force, the relevant Minister must, as soon as is reasonably practicable, carry out a review of the operation of the power to determine whether it should be amended or repealed. Before carrying out the review the Minister must publish criteria against which that decision will be made. In carrying out the review, the Minister is required to the consult the Information Commissioner, relevant Ministers from the devolved administrations and other persons as the Minister considers appropriate.
  2. Under subsection (4), upon completion of the review, the Minister must publish a report setting out the findings, and have a copy of the report laid before Parliament and the legislatures in the devolved administrations. The section provides an order-making power for the Minister to amend or repeal the Chapter as a result of the review. Subsection (6) makes clear that the power to amend the Chapter may only be used to improve the effectiveness of the section 56 power, and expressly states that it cannot be used to remove any existing safeguards in sections 57, 58 or 59. Where any such regulations seek to repeal the Chapter or make provision in respect of devolved matters, the Minister must, before making any such regulations, obtain the consent of the relevant devolved administrations. The Minister must seek the consent of HM Treasury before any regulations are made which could affect the disclosure of information by Her Majesty’s Revenue and Customs.

Section 62: Regulations under this Chapter

  1. Before making regulations under this Chapter the appropriate national authority must consult the Information Commissioner, each other person who is an appropriate national authority in relation to regulations under the Chapter, the Commissioners for Her Majesty’s Revenue and Customs and any other persons the appropriate national authority thinks appropriate. The regulations may contain consequential, supplementary, transitional or transitory provisions or savings.
  2. The power to make regulations under section 56(6) to add to the Schedule includes a power to make provisions that restrict onward disclosure similar to that made by section 59 in respect of information disclosed by the Revenue and Customs. This is intended to cover a situation where the nature of the body to be added is such that its information would require similar protection to that offered to Revenue and Customs’ information.
  3. Regulations made under this Chapter will be subject to the affirmative resolution procedure, which requires the regulations to be approved by both Houses of Parliament or the equivalent procedure in the devolved legislatures.

Section 63: Interpretation of Chapter

  1. This section sets out definitions for interpreting Chapter 4, which include the definitions of devolved bodies for the purposes of the Chapter. As in section 45 for Chapter 1, "Scottish body" does not include cross-border public authorities and the meaning given to "Welsh body" ensures that the definition is consistent with the definition of a devolved Welsh authority in section 157A of the Government of Wales Act 2006.

Chapter 5: Sharing for research purposes

Section 64: Disclosure of information for research purposes

  1. Subsection (1) allows public authorities to share information that they hold in connection with their functions for the purposes of research. Information-sharing arrangements in support of these provisions will allow two or more public authorities to share and link information in secure conditions. Both non-personal and personal information can be disclosed pursuant to section 64(1). Non-personal information includes information from surveys or from existing findings or studies. This could also include Unique Property Reference Numbers if the view is taken that they are not personal information.
  2. For the purposes of safeguarding the privacy of individuals, section 64 provides that six conditions must be met before "personal information" can be disclosed under subsection (1).
  3. The first condition is that information must be processed before it is disclosed if it identifies a particular person. Subsection (12) provides that information identifies a particular person if the information specifies the identity of a person or if a person’s identity can be deduced from the information (whether by itself or taken together with any other information). A "particular person" includes a body corporate (subsection (11)). The public authority may process its own information or another public authority, or some other person, may process the information on its behalf (subsection (4)). Other persons may include private companies which specialise in removing "identifiers" from information and those which provide secure access to personal information provided in both cases that they are accredited to do so in accordance with the fifth condition.
  4. Processing the information involves removing identifying information so that (a) the information does not specify a person’s identity and (b) it is not reasonably likely that the identity of a person will be deduced from the information (whether by itself or taken together with any other information). Subsection (5) permits the disclosure of personal information, as defined by subsection (11), to processors, for the purposes of processing it for disclosure under section 64(1). When it comes to information disclosed by the Revenue and Customs, the Welsh Revenue Authority and Revenue Scotland, a processor will need the consent of the relevant revenue authority before making a disclosure under subsection (5)(b).
  5. By subsection (6), the second condition is that each person who is involved in processing the information for disclosure takes reasonable steps to (a) minimise the risk of the accidental disclosure of information which identifies a particular person and (b) prevent the deliberate unlawful disclosure of such information.
  6. By subsection (7), the third condition is that the disclosure under subsection (1) is made by the public authority or by a person involved in processing the information for disclosure.
  7. By subsection (8), the fourth condition is that the research for the purposes of which the information is disclosed is accredited under section 71. By virtue of section 71(4), the research must be in the public interest. Criteria for determining whether research is in the public interest will be set out in the code of practice established by section 70.
  8. By subsection (9), the fifth condition is that the following persons must also be accredited: (a) any person involved in processing information for disclosure (including the public authority if it is involved in processing its own information); (b) any person to whom information is disclosed (including providers of secure access facilities, which provide researchers and peer reviewers with carefully controlled access to the information); and (c) any person by whom such information is used for research purposes, such as researchers and peer reviewers.
  9. By subsection (10), the sixth condition is that each person who discloses the information or is involved in processing it for disclosure must have regard to the code of practice under section 70 in doing so.
  10. Subsections (11) and (12) define "personal information" and information that "identifies a particular person".

Section 65: Provisions supplementary to section 64

  1. This section sets out the parameters of the power, and how it interacts with existing law.
  2. Subsection (1) provides that disclosure of information under section 64 does not breach the common law duty of confidentiality or any other restrictions on disclosing the information.
  3. Subsections (2) and (3) provide, however, that information cannot be disclosed under section 64 if to do so would breach the Data Protection Act 1998 or be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016 or, until its repeal, by Part 1 of the Regulation of Investigatory Powers Act 2000.
  4. Subsection (4) provides that where a public authority has functions which relate to the provision of health services or adult social care, that public authority cannot disclose under section 64(1) information it holds in connection with such functions. Subsection (4) does not prevent the public authority from disclosing information that it holds in connection with its other functions.
  5. Subsection (5) provides that section 64 does not limit any power to disclose information that exists apart from that section.
  6. Subsections (6) to (8) allow for public authorities and processors to charge fees to researchers for work done, where the researchers have requested information to be disclosed under section 64(1). Fees charged a by public authority must be charged on a cost-recovery basis.

Section 66: Bar on further disclosure of personal information

  1. This section applies to personal information disclosed by public authorities other than the revenue authorities. It establishes two criminal offences.
  2. The subsection (2) offence protects a defined class of personal information once it has been disclosed under section 64(1). The offence applies to information which specifies the identity of a particular person, even though section 64(1) does not permit the disclosure of such information. This is to ensure that if such information is purportedly disclosed under section 64(1), when it should not have been, that the information is protected by the offence.
  3. Once information has been properly processed for disclosure, it will not be reasonably likely that a person’s identity will be deduced from the information. However, it might still be possible to deduce a person’s identity from the information. The subsection (2) offence recognises this and protects the information if a person’s identity could be deduced (from the information itself or from the information taken together with any other published information).
  4. Any person who receives that defined class of personal information under section 64(1) and any other person who receives that information, directly or indirectly, from such a person, is prohibited from disclosing it, other than in accordance with subsection (3) or subsection (7). Subsection (3)(a) permits a disclosure to the researcher who is accredited to carry out the relevant research. Subsection (3)(b) permits disclosure to an accredited peer reviewer. Subsection (7) contains a list of various exceptions, including disclosures that are required or permitted by any enactment (including the Act itself) and disclosures made with consent of the person to whom the information relates.
  5. The Act does not place restrictions on the use or onward disclosure of information which has been disclosed under section 64(1) but which is not personal information within the meaning of section 66(1).
  6. The subsection (5) offence protects personal information (within the meaning of sections 64(11) and (12)) that has been disclosed for the purpose of processing it for disclosure under section 64(1). It is an offence for a processor, or any person who receives such information directly or indirectly from a processor, to disclose that information other than as permitted by subsection (6) or (7). Subsection (6)(a) ensures that the offence is not committed when a processor discloses the processed information under section 64(1) or when a processor discloses the information to another processor under section 64(5)(b). Subsection (6)(b) ensures – where it is a processor that makes the disclosure under section 64(1) on behalf of the public authority – that the subsection (5)(b) offence does not apply to a disclosure made by the initial recipient of the information or by any person who receives the information from that initial recipient. The last line of subsection (6)(b) ensures that the subsection (2) offence may still apply to a disclosure of information made by those persons.
  7. Given that the offence applies to personal information which has been disclosed for processing, it will apply even if the information has been processed and is ready for disclosure under section 64(1). As set out above, however, subsection (6)(a) permits a processor to make a disclosure of that information under section 64(1).
  8. By virtue of subsection (10), a person commits an offence if at the time the person makes the disclosure, the person knows that the disclosure contravenes subsections (2) or (5) or is reckless as to whether the disclosure does so.
  9. The limited circumstances in which personal information can be disclosed without committing the offence apply to the offences under subsections (2) and (5). Other restrictions on disclosure of personal information – including other criminal offences regarding the unauthorised disclosure of information – may still also apply.

Section 67: Information disclosed by the Revenue and Customs

  1. The two offences in section 67 apply to personal information which has been disclosed by the Revenue and Customs under section 64(1) or (5). The subsection (2) offence protects the same defined class of information as set out for the section 66(2) offence, but differs in two principal respects. Firstly, there is no equivalent of section 66(7). A disclosure will be caught by the offence unless it is permitted by subsection (3) or the Revenue and Customs consents to the disclosure (subsection (7)). As with the section 66(2) offence, subsection (3)(a) permits a disclosure to the researcher who is accredited to carry out the relevant research. Subsection (3)(b) permits disclosure to an accredited peer reviewer. Secondly, the offence only applies to certain onward disclosures of personal information that has been disclosed under section 64(1). By virtue of subsection (2)(a), the offence applies to a disclosure made by the initial recipient of the information under section 64(1). By virtue of subsection (2)(b), the offence also applies to disclosures made by a person to whom the information is disclosed under subsection (3), that is accredited researchers and accredited peer reviewers.
  2. The Act does not place restrictions on the use or onward disclosure of information which has been disclosed under section 64(1) but which is not personal information within the meaning of section 66(1).
  3. The subsection (5) offence, like the section 66(5) offence, protects personal information (within the meaning of section 64(11) and (12)), that has been disclosed for the purposes of processing it for disclosure under section 64(1). It differs from the section 66(5) offence in two principal respects. Firstly, there is no equivalent of section 66(7). A disclosure will be an offence unless, by virtue of subsection (6), it is a disclosure by a processor pursuant to section 64(1) or the Commissioners for Her Majesty’s Revenue and Customs consent to the disclosure (subsection (7)). Secondly, the offence applies to disclosures made by processors who have received the information under section 64(5). It does not apply to onward disclosures made by other persons. For example, if an accredited researcher unlawfully disclosed personal information to a journalist, a further disclosure by that journalist would not be a criminal offence under subsection (5).
  4. Given that the offence applies to personal information which has been disclosed for processing, it will apply even if the information has been processed and is ready for disclosure under section 64(1). As set out above, however, subsection (6) permits a processor to make a disclosure of that information under section 64(1).
  5. By virtue of subsection (9), it is a defence for a person charged with either offence to prove that the person reasonably believed that the disclosure was lawful or that the information had already and lawfully been made available to the public.

Section 68: Information disclosed by the Welsh Revenue Authority

  1. Section 68 establishes two offences which provide equivalent protection for information disclosed by the Welsh Revenue Authority under sections 64(1) and (5) as that provided by section 67 for information disclosed by Her Majesty’s Revenue and Customs.
  2. By virtue of subsection (9) it is a defence for a person charged with either offence to prove that the person reasonably believed that the disclosure was lawful or that the information had already and lawfully been made available to the public.

Section 69: Information disclosed by Revenue Scotland

  1. Section 69 establishes two offences which provide equivalent protection for information disclosed by Revenue Scotland under sections 64(1) and (5) as that provided by section 67 for information disclosed by Her Majesty’s Revenue and Customs.
  2. By virtue of subsection (9), it is a defence for a person charged with either offence to prove that the person reasonably believed that the disclosure was lawful or that the information had already and lawfully been made available to the public.

Section 70: Code of practice

  1. This section provides that a code of practice must be issued by the Statistics Board (the name used in legislation when describing the United Kingdom Statistics Authority) about the disclosure and processing of personal information under section 64 and about the holding or use of personal information disclosed under section 64. The Statistics Board must prepare, consult on, and issue the code of practice and may from time to time revise and re-issue it. The code of practice must be consistent with the code of practice issued by the Information Commissioner under section 52B of the Data Protection Act 1998. Subsection (9) requires that the first version of the code be approved by a resolution of each House of Parliament. Subsections (10) and (12) set out the procedure to be followed before the Statistics Board may reissue the code. Subsection (14) provides that as soon as reasonably practicable after issuing or reissuing the code, the Statistics Board must lay a copy before the devolved legislatures.
  2. Subsections (3) and (15) provide that all persons disclosing or using information under section 64 must have regard to the code of practice and to applicable codes of practice that the Information Commissioner has issued under section 51(3) of the Data Protection Act 1998 on the identification and reduction of risks to privacy and on information to be provided to data subjects on the use of information collected from them, in so far as the codes apply. This would include the current codes which relate to privacy impact assessments and privacy notices.

Section 71: Accreditation for the purposes of this Chapter

  1. This section sets out the system of accreditation which will be operated by the Statistics Board. Accreditation applies to both the research itself and the persons involved in processing information for use in research.
  2. Subsection (1) gives the Statistics Board the power to accredit, and withdraw accreditation from:
    1. persons who may be involved in processing information for disclosure under section 64(1),
    2. persons to whom information may be disclosed under section 64(1),
    3. researchers by whom the disclosed information may be used for research purposes, and
    4. the research itself.
  3. Subsections (2) to (5) set out the duty of the Statistics Board to establish and publish conditions for accreditation as well as grounds for withdrawing accreditation. The conditions for the accreditation of persons involved in the processing of information for disclosure must include a condition that the person is a "fit and proper person" to be involved in such processing. The conditions for the accreditation of research must include a condition that the research is in the public interest. The grounds for withdrawal of accreditation must include a ground that the person has failed to have regard to the code of practice under section 70.
  4. Subsection (6) requires the Statistics Board, before publishing conditions for accreditation or grounds for withdrawal of accreditation, to consult the Minister for the Cabinet Office, the Information Commissioner, the Commissioners for Her Majesty’s Revenue and Customs, the Scottish Ministers, the Welsh Ministers, the Department of Finance in Northern Ireland and such other persons as the Statistics Board thinks appropriate.
  5. Subsection (7) allows the Statistics Board to revise and update the accreditation criteria as and when it considers it to be appropriate. Subsection (8) provides that the Statistics Board must consult the same persons as required by subsection (7), before revising the accreditation criteria.
  6. Subsections (9) to (11) set out requirements for the Statistics Board to maintain and publish a register of accredited persons.

Section 72: Delegation of functions of Statistics Board

  1. This section provides the Statistics Board with the power to delegate any of its functions under section 71 to another person, providing certain conditions are met.

Section 73: Interpretation of this Chapter

  1. This section sets out definitions for interpreting this Chapter of the legislation.

Chapter 6: Disclosure by Revenue Authorities

Section 74: Disclosure of non-identifying information by the Revenue and Customs

  1. Section 74 relaxes the current legal constraints on disclosing non-identifying information, allowing Her Majesty’s Revenue and Customs to share aggregate and general information more widely, for purposes in the public interest.
  2. Subsection (1) gives Revenue and Customs officials the authority to decide whether disclosure is in the public interest. Non-identifying information is defined through subsections (2) and (3) as information that does not specify the identity of a person or allow a person’s identity to be deduced either from that information alone or from that information taken together with any other information. Subsection (4) provides definitions for this section.

Section 75: Disclosure of non-identifying information by the Welsh Revenue Authority

  1. Section 75 permits a relevant official of the Welsh Revenue Authority to disclose non-identifying information if the official thinks that the disclosure would be in the public interest. Subsection (2) defines "non-identifying" information and subsection (3) defines "identifying" information. By subsection (4)(b), the power applies to: (i) non-identifying information held by the Welsh Revenue Authority in connection with its functions and (ii) non-identifying information held by a person to whom any of the functions of the Welsh Revenue Authority have been delegated in connection with those functions.

Section 76: Disclosure of non-identifying information by Revenue Scotland

  1. Section 76 permits a relevant official of Revenue Scotland to disclose non-identifying information if the official thinks that the disclosure would be in the public interest. Subsection (2) defines "non-identifying" information and subsection (3) defines "identifying" information. The information must be held by a relevant person in connection with a relevant function, as defined by subsection (4).

Section 77: Disclosure of employer reference information by the Revenue and Customs

  1. The Employer Liability Tracing Office (ELTO) is a non-profit making company which maintains a database of insurance policies to enable employees to trace former or current employers and their insurers in order to obtain compensation for workplace injuries. Section 77 enables Her Majesty’s Revenue and Customs to share the name and address of an employer and associated reference numbers with ELTO, for the purpose of assisting with such claims. Access to this information is expected to help improve the quality of the ELTO databases.

Chapter 7: Statistics

Section 78: Disclosure of information by the Revenue and Customs to the Statistics Board

  1. This section amends section 45 of the Statistics and Registration Service Act 2007 ("the 2007 Act") which makes provision for the disclosure of information held by Her Majesty’s Revenue and Customs to the Statistics Board (the name used in legislation when describing the United Kingdom Statistics Authority). It lifts the restriction that prevents the Revenue and Customs from disclosing information to the Statistics Board for the Board's functions under section 22 of the 2007 Act (statistical services), and it permits the Board to use information for those functions where it has the consent of the Commissioners for Her Majesty’s Revenue and Customs. It also omits subsection (5) of section 45 of the 2007 Act which prevents the disclosure of personal information held by the Revenue and Customs that does not relate to imports and exports.
  2. Subsections (6) to (8) insert a new subsection (4A) into section 45, providing that in disclosing information under section 45, the Commissioners or an officer of Revenue and Customs must have regard to applicable codes of practice that the Information Commissioner has issued under section 51(3) of the Data Protection Act 1998 on the identification and reduction of risks to privacy or on information to be provided to data subjects on the use of information collected from them, in so far as the codes apply to the information in question. This would include the current codes on privacy impact assessments and privacy notices. In determining how to comply with this duty, the Commissioners or the officer of Revenue or Customs must have regard to any view of the Statistics Board which is communicated to them.

Section 79: Disclosure of information by public authorities to the Statistics Board

  1. Subsection (2) inserts new section 45A (information held by other public authorities) into the Statistics and Registration Service Act 2007 ("the 2007 Act") to make provision for the disclosure of information held by public authorities to the Statistics Board where the public authority is satisfied that the Board requires that information for the purposes of any one or more of the Board's functions. Such information may not be used by the Statistics Board for the purposes of its functions under section 22 of the 2007 Act (statistical services), or be disclosed by the Board to an approved researcher under section 39(4)(i) of the 2007 Act, without the consent of the public authority which provided the information.
  2. Subsection (8) of new section 45A provides that in disclosing information under section 45A, a public authority must have regard to applicable codes of practice that the Information Commissioner has issued under section 51(3) of the Data Protection Act 1998 on identification and reduction of risks to privacy or on information to be provided to data subjects on the use of information collected from them, in so far as the codes apply to the information in question. This would include the current codes on privacy impact assessments and privacy notices. In determining how to comply with this duty, the public authority must have regard to any views of the Statistics Board that are communicated to it.
  3. Subsection (11) of new section 45A provides that any such disclosure does not breach any obligation of confidence or other restriction on disclosure, however imposed. The section does not authorise a disclosure that contravenes the Data Protection Act 1998, is prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016 (or, until such time as those provisions are in force, Part 1 of the Regulation of Investigatory Powers Act 2000) or contravenes EU law.
  4. Subsection (3) omits sections 47 to 49 of the 2007 Act which make provision for regulations to authorise disclosure by public authorities, including devolved authorities, to the Statistics Board. Those powers to make provision by regulations for sharing information are replaced by the regime set out in new section 45A.

Section 80: Access to information by Statistics Board

  1. This section inserts new sections 45B to 45G into the Statistics and Registration Service Act 2007 ("the 2007 Act") to give the Statistics Board access to information held by a range of different bodies.
  2. New section 45B (access to information held by Crown bodies etc) concerns access by the Statistics Board to information held by Crown bodies and other named bodies. Subsection (2) of new section 45B provides that the Board has a right of access to information which is held by a Crown body, or one of these other named bodies, in connection with the body’s functions and which is required by the Board to enable it to exercise one or more of its functions.
  3. New section 45B allows the Statistics Board to make a formal written request for information from Crown bodies. The right is subject to the terms of new sections 45B and 45E. The body in question must respond in writing to the request, either indicating it is willing to provide the information (and the date it will provide it) or that it is not willing to provide the information (and giving reasons for not providing it). If the body does not provide the information requested the Statistics Board may bring the matter to the legislature’s attention by laying the request and the body’s response before Parliament or the relevant devolved legislature. Subsection (3) of new section 45B specifies that it does not authorise a disclosure that would contravene the Data Protection Act 1998, would be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016 (or, until such time as those provisions are in force, would be prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000) or would contravene EU law.
  4. New section 45C (power to require disclosures by other public authorities) confers powers on the Statistics Board, by notice in writing, to require the disclosure of information held by other public authorities. The information required will be specified in a notice. The notice may also specify times and dates to which the information relates, the date by which, and the form and manner in which, the information must be disclosed. Subsection (6) of new section 45C also allows the Statistics Board to include in a notice a requirement for a public authority to consult the Board before making changes to its processes for collecting, organising, storing or retrieving information to which the notice relates, or to processes for supplying such information to the Board.
  5. Subsection (8) of new section 45C provides that the Statistics Board may only issue a request or a notice if the information to be disclosed is required by the Board for any one or more of the Board’s functions.
  6. By subsections (9) to (11) of new section 45C, the Statistics Board must obtain the consent of Ministers in the devolved administrations before giving a notice to a public authority that is:
    1. a Scottish public authority, defined by reference to the Scotland Act 1998,
    2. a devolved Welsh authority, as defined by the Government of Wales Act 2006, or
    3. a public authority that exercises devolved functions only as regards Northern Ireland.
  7. Subsection (13) of new section 45C specifies that it does not authorise a disclosure that might prejudice national security, would contravene the Data Protection Act 1998, would be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016 (or, until such time as those provisions are in force, would be prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000) or would contravene EU law.
  8. New section 45D (power to require disclosure by undertakings) confers a power on the Statistics Board, by notice in writing, to require the disclosure of information held by undertakings. As with new section 45C, the information required will be specified in a notice, which may also specify the times and dates to which the information relates, the date by which, and the form and manner in which, the information must be disclosed. Subsection (5) of new section 45D also allows the Statistics Board to include in a notice a requirement for the undertaking to consult the Board before making changes to its processes for collecting, organising, storing or retrieving information to which the notice relates, or to processes for supplying such information to the Board.
  9. Subsection (7) of new section 45D provides that the Statistics Board may only issue a notice if the information to be disclosed is required by the Board for any one or more of the Board's functions.
  10. Subsection (9) of new section 45D specifies that it does not authorise a disclosure that might prejudice national security, would contravene the Data Protection Act 1998, would be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016 (or, until such time as those provisions are in force, would be prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000).
  11. Subsection (11) of new section 45D provides a definition of an undertaking for the purposes of section 45D.
  12. New section 45E (further provisions about powers in sections 45B, 45C and 45D) sets out additional provisions which are common to new sections 45B, 45C and 45D. Subsections (2) and (3) of new section 45E prevent information disclosed in response to a request or a notice from being used by the Statistics Board for the purposes of its functions under section 22 of the 2007 Act (statistical services), or disclosed by the Board to an approved researcher under section 39(4)(i) of the 2007 Act, without the consent of the public authority or undertaking which provided that information. Subsection (4) of new section 45E provides that a disclosure in response to a request does not breach any obligation of confidence or any other restriction on disclosure.
  13. Subsections (5) and (8) of new section 45E require the Statistics Board to prepare, consult on, and publish a statement of principles and procedures by which it will exercise its functions under this section. The draft statement must be laid before Parliament. By subsection (6), it must be consistent with the code of practice issued by the Information Commissioner under section 52B of the Data Protection Act 1998.
  14. By subsection (10) of new section 45E, the first version of the statement must be approved by resolution of each House of Parliament before it can be published. Subsections (11) and (12) of new section 45E set out the procedure to be followed before the Statistics Board may publish a revised statement. Subsection (15) of section 45E provides that after preparing or revising a statement, the Statistics Board must lay it before the devolved legislatures.
  15. Subsection (16) of new section 45E provides that in exercising any of its functions under sections 45B, 45C or 45D, the Statistics Board must have regard to any applicable code of practice the Information Commissioner has issued under section 51(3) of the Data Protection Act 1998 on the identification and reduction of risks to privacy, in so far as the code applies to the information in question. This would include the current code on privacy impact assessments.
  16. New section 45F (offences relating to notices under section 45C or 45D) makes it an offence to fail to comply with a notice issued under new sections 45C or 45D without reasonable excuse, or if in purporting to comply with a notice a person knowingly or recklessly provides false information.
  17. Subsection (1) of new section 45G (code of practice on changes to data systems) requires the Statistics Board to prepare, consult on, and publish a code of practice setting out guidance that public authorities, including Crown bodies, need to take into account when making such changes. The purpose of the code is to ensure that the requirements of the Statistics Board are taken into account when public authorities change their collection and storage of information in ways that could affect the continued supply of information which is used to compile official statistics. Subsection (2) of new section 45G requires a public authority to have regard to that code of practice in making such changes. By subsection (6) of new section 45G, the first version of the code must be approved by a resolution of each House of Parliament before it can be published. Subsections (7) and (8) of new section 45G set out the procedure to be followed before the Statistics Board may publish a revised code. Subsection (11) of new section 45G provides that after preparing or revising a code, the Statistics Board must lay it before the devolved legislatures.

Section 81: Disclosure by the Statistics Board to devolved administrations

  1. This section inserts a new section 53A into the Statistics and Registration Service Act 2007. New section 53A will allow the Statistics Board to disclose information it holds in connection with the exercise of any of its functions to a devolved authority (which is defined in subsection (2) of the new section). Information may only be disclosed for the purpose of the statistical functions of the devolved authority. New section 53A sets out the procedure by which the devolved authority must request the information, which requires a written request which specifies the information that is sought and the purposes for which it is sought. Subsection (6) of new section 53A specifies conditions for disclosure which include, in the case of information received from public authorities, that the public authority consents to its disclosure. Subsection (7) of new section 53A permits the Statistics Board to set conditions the devolved authority must meet before the information is disclosed. Subsection (8) of new section 53A limits use of the information disclosed to the purposes for which it was disclosed.
  2. Subsection (9) of new section 53A provides that in disclosing information under section 53A, the Statistics Board must have regard to applicable codes of practice that the Information Commissioner has issued under section 51(3) of the Data Protection Act 1998 on the identification and reduction of risks to privacy or on information to be provided to data subjects on the use of information collected from them, in so far as the codes apply to the information in question. This would include the current codes on privacy impact assessments and privacy notices.
  3. By subsection (12), new section 53A does not permit a disclosure which would breach a restriction on disclosure (such as an obligation of confidence owed by the Statistics Board), would contravene the Data Protection Act 1998, would be prohibited by any of Parts 1 to 7 or Chapter 1 of Part 9 of the Investigatory Powers Act 2016 (or, until such time as those provisions are in force, would be prohibited by Part 1 of the Regulation of Investigatory Powers Act 2000) or any other restriction on the disclosure of information (however imposed).

Part 6: Miscellaneous

Section 82: OFCOM reports on infrastructure etc

  1. Section 134A of the 2003 Act requires Ofcom to report to the Secretary of State triennially on various matters relating to electronic communications networks and electronic communications services listed in section 134B(1) and (2). This section inserts new sections 134AA and 134AB. New section 134AA sets out that Ofcom has the power to prepare and publish a report on any of those matters at times or at intervals it considers appropriate. Ofcom is not required to report on all matters listed in section 134B(1) and (2). It is for Ofcom to consider which matters to report on. New section 134AB allows Ofcom to publish information obtained under section 135 for the purpose of preparing a report under 134A or 134AA, and also allows Ofcom to publish information derived from such information.
  2. New sections 134AA and 134AB place a duty on Ofcom to consider whether they could refuse to disclose under the Freedom of Information Act 2000 information to be contained in a report and, if so, whether that information should be excluded from the report or be published, respectively.
  3. This section does not affect Ofcom’s duty to prepare a report on a triennial basis to the Secretary of State, as set out in section 134A.

Section 83: Comparative overviews of quality and prices

  1. This section inserts new section 134D in the 2003 Act, giving Ofcom an express power to carry out and publish comparative overviews of the quality and price of public electronic communications services, in the interest of end-users of those services.
  2. Subsection (3) amends section 136 so as to repeal the provision it replaces and ensure that Ofcom has the power to require a communications provider or person who make available associated facilities to provide Ofcom with information for the purpose of carrying out comparative overviews. Subsection (4) amends section 393(6) of the 2003 Act to provide that nothing in section 393 (general restrictions on the disclosure of information) limits the matters that may be published as part of such a comparative overview.
  3. This section repeals section 136(2) and replaces it with a new section 134D, which gives Ofcom an express power to carry out and publish such comparative overviews. It also amends section 393(6) of the 2003 Act to provide that nothing in section 393 (general restrictions on the disclosure of information) limits the matters that may be published as part of such a comparative overview.

Section 84: Conditions about allocation of telephone numbers

  1. Section 58 of the 2003 Act provides that general conditions (which may be set by Ofcom under section 45 of the 2003 Act) may include conditions about the allocation and adoption of telephone numbers. This section amends section 58 by inserting new subsection (2A) which provides that general conditions may also require communications providers that have been allocated telephone numbers to inform Ofcom of certain circumstances or events. These are further specified in subsections (2A)(a) to (d).
  2. New subsection (2A)(a) covers information which a communication provider was not required to provide at the time of applying for an allocation of numbers, but which has since been made a requirement on application. New subsection (2A)(b) covers any changes to the information provided at the time of applying for an allocation of telephone numbers. New subsection (2A)(c) covers any proposal by the provider to cease providing an electronic communications service or network. New subsection (2A)(d) covers any other circumstances or events that Ofcom may specify in the general condition itself. These might include (but are not limited to) events such as the commencement of proceedings for liquidation, bankruptcy, administration or receivership in relation to the communications provider.

Section 85: Provision of information to OFCOM

  1. Section 135 of the 2003 Act provides Ofcom with powers to obtain information necessary for the purpose of carrying out its functions under Chapter 1 of Part 2 of the 2003 Act. This section amends section 135 by substituting a new subsection (1). This new subsection sets out that Ofcom may also use its information gathering powers under Section 135 to obtain information necessary for the purpose of carrying out two of its functions that are outside of Part 2 Chapter 1.
  2. New subsection (1)(a) enables Ofcom to use its information gathering powers under section 135 to carry out its functions under section 14(1) of the 2003 Act. Section 14(1) requires Ofcom to make arrangements for ascertaining the state of public opinion and the interests and experiences of consumers in relation to various specified matters.
  3. New subsection (1)(b) enables Ofcom to use its information gathering powers under section 135 of the 2003 Act to carry out its functions under section 26 of the 2003 Act, insofar as they relate to matters in relation to which Ofcom have functions under Part 2 Chapter 1. Section 26 requires Ofcom to arrange for the publication of information and advice about matters in relation to which they have functions as appears to them to be appropriate to make available to various specified persons.

Section 86: Information required from communications providers

  1. This section amends the 2003 Act by inserting new sections 137A and 137B, which set out the scope of Ofcom’s powers to require communications providers to collect, generate or retain information for the purpose of publication, either by the communications provider, or by Ofcom.
  2. Subsection (1)(a) of new section 137A gives Ofcom power to require communications providers to publish any information held by the provider. Subsection (1)(b) provides powers to require communications providers to provide any such information to Ofcom, for the purposes of Ofcom publishing such material.
  3. Subsection (2) of new section 137A allows the requirements imposed under subsection (1) to include requirements to produce, generate or obtain information. Subsection (3)(a) to (c) of new section 137A contains a non-exhaustive list of some of the things that the communications provider might be required to do, including collect information, retain information or generate new information through analysis of data or information. The power also encompasses a requirement for communications providers to answer any questions that Ofcom might ask under this subsection.
  4. Subsection (4) of new section 137A sets out the limitations on Ofcom’s powers under subsections (1) to (3). Ofcom may use the powers conferred by subsections (1) to (3) only in connection with the carrying out its functions under Chapter 1 of Part 2 of the 2003 Act (provisions relating to electronic communications networks and services), or related functions under Part 1. Subsection (4)(b) requires that the exercise of the powers conferred by subsection (1) to (3) is proportionate to the use to which the material will be put in connection with the carrying out of those functions.
  5. Subsection (5) of new section 137A provides that the power conferred is to be exercised by a demand contained in a notice served on the communications provider, which describes the information or analysis required, or sets out the questions to be answered. The notice must also set out Ofcom’s reasons for imposing the requirement.
  6. Subsection (6)(a) requires that Ofcom serve a draft of any forthcoming demand to the recipient in advance of issuing it, and inform the provider of the period in which they may make representations. Subsection (6)(b) requires that Ofcom have regard to representations made by a communications provider within that period which identify restrictions in complying with the demand, due to restrictions on the disclosure or publication of information, as set out in subsection 6(b)(i) or due to the practicability of complying with the demand, as set out in subsection 6(b)(ii).
  7. Subsection (7) of new section 137A gives Ofcom power to prescribe the manner and form in which information, analysis or answers are to be published or provided under subsection (1)(a) or (b), and the timeframe within which they must be published or provided (subject to it being a reasonable period). Subsection (8) provides that, when Ofcom publishes information, analysis or answers, it must do so in a manner and form that it considers appropriate.
  8. New section 137B(1) requires that in exercising the powers conferred on it under new section 137A, Ofcom must have regard to the need to exclude from publication matters which are confidential, as defined in subsections (2) and (3). This mirrors the qualification on Ofcom’s duty to arrange for the publication of information and advice under section 26.

Section 87: Appeals from decisions of OFCOM and others: standard of review

  1. This section amends the 2003 Act by inserting a new section 194A that requires appeals to the CAT against specified regulatory decisions under section 192 to be decided by applying the same principles as would be applied by a court on an application for judicial review. The CAT may then dismiss the appeal or quash the whole of part of the decision to which it relates; and where it quashes the whole of part of the decision, remit the matter back to the decision-maker with a direction to reconsider and make a new decision in accordance with its ruling.
  2. Subsection (2) of this section amends section 193 of the 2003 Act, relating to price control matters referred to the Competition and Markets Authority ("CMA"), so that when considering a price control matter the CMA must have regard to the principles to be applied by the CAT under section 194A.
  3. Subsection (11) amends section 317 of the 2003 Act to ensure that the provisions of the new section 194A also apply to appeals against decisions of the regulator when exercising a Broadcasting Act power for a competition purpose under section 317 of the 2003 Act.
  4. Subsection (12) provides that the changes made by this section do not apply to appeals against decisions made before the section comes into force.
  5. Those appeals that are not specified will continue to be decided "on the merits" under section 195 of the 2003 Act.

Section 88: Functions of OFCOM in relation to the BBC

  1. This section amends section 198 of the 2003 Act to broaden the ability of Ofcom to regulate the activities of the BBC, giving Ofcom expanded regulatory powers in relation to the BBC’s activities. Subsection (3) provides that the BBC Charter and Framework Agreement will specify how Ofcom will exercise its statutory powers in relation to the BBC, including in relation to the BBC’s commercial services.
  2. This section also creates a new provision in the 2003 Act which confers a power for Ofcom to fine a person who does not provide information in connection with Ofcom’s regulatory functions in relation to the BBC. The substantive requirements for Ofcom to fulfil before it can issue a fine are provided for in section 88. The section also requires Ofcom to publish guidance in order to provide clarity as to how it will approach issuing penalties. These powers are similar to those Ofcom already has in relation to telecommunications, but with a lesser maximum financial penalty of up to £250,000 (which will be a form of civil, as opposed to criminal, fine).

Section 89: TV licence fee concessions by reference to age

  1. Section 365 of the 2003 Act enables the Secretary of State to make provision for concessions in relation to the payment of the television licence fee, which may take the form of exemptions from payment or of reduced rate payments. This includes a concession for a free television licence for those who have reached a qualifying age, currently set at 75 years. The Secretary of State exercises the function of conferring concessions by making regulations.
  2. This section inserts new section 365A into the 2003 Act to confer on the BBC the function of making provision for a TV licence fee concession by reference to age, limited by subsection (2) of the new section to persons who are aged 65 or over and by subsection (3) to exclude a concession of the same form as that are currently provided by the Secretary of State in relation to residential care. From 1 June 2020 this concession will no longer be determined by regulations but determined independently by the BBC following consultation. The BBC will have the power to make changes to the concession, including changing the eligibility criteria, level of concession and qualifying age (although this may not be lower than 65) or to end the concession.
  3. The Secretary of State retains the power to make provision for all other concessions. This includes the current residential care concession or its equivalent.

Section 90: Provision of children’s programmes

  1. This section confers a power on Ofcom, if it thinks fit, to publish criteria relating to the provision of children’s programmes on licensed public service channels (i.e. Channel 3, Channel 4 and Channel 5) and services related to those channels. This section also confers a power on Ofcom to impose, if it considers necessary, conditions (quotas) that it deems appropriate for securing that the provision of children’s programmes meets any such criteria.
  2. This section requires Ofcom to publish any criteria relating to the provision of children’s programmes in a statement that sets out the criteria and how it proposes to apply them. Before publishing or reviewing any statement, Ofcom must carry out a public consultation. After any review, Ofcom would revise or withdraw the criteria by publishing a further statement. Where Ofcom publishes criteria, it may from time to time assess the provision of children’s programmes in relation to any licensed public service channel. For the purposes of that assessment, Ofcom must take into account the provision of children’s programmes on all "related services" and draw no distinction between whether a programme is provided on a licenced public service channel or on another service.

Section 91: Suspension of radio licences for inciting crime or disorder

  1. Subsection (1) replaces section 111B of the Broadcasting Act 1990 to give Ofcom the ability to suspend (pending a decision whether to revoke) the licence of a radio station that has breached a condition of its broadcast licence by broadcasting material which, in Ofcom’s view, is likely to encourage or incite the commission of crime or lead to disorder. This replaces a power for Ofcom to rapidly suspend licences (pending a decision to revoke) which previously only applied to Radio Licensable Content Services (RLCS) broadcasting via satellite and cable platforms; this new power applies the same procedure to all types of radio licences.
  2. Subsection (1) of the new section 111B requires Ofcom to serve a notice suspending a radio service licence if they are satisfied that the licensee has breached a condition of its licence by broadcasting material likely to encourage or incite the commission of crime or lead to disorder and Ofcom considers the contravention justifies the revocation of the licence.
  3. New subsection (2) specifies that the notice served on the licence holder by Ofcom must set out the reasons why it considers the licensee has failed to comply with its licence condition and give the licensee a period of 21 days during which it can make representations to Ofcom.
  4. New subsection (3) confirms that the effect of serving a notice is to suspend the licence (so that the licensee must stop broadcasting immediately) until Ofcom makes a decision either to revoke the licence or reinstate it. Subsections (4) to (6) specify the process for revoking the licence.
  5. New subsection (7) provides that this power is separate from Ofcom’s wider power to revoke broadcasting licences in section 111 of the Broadcasting Act 1990.

Section 92: Digital additional services: seriously harmful extrinsic material

  1. Subsection (1) of new section 24A of the Broadcasting Act 1996 places a duty on Ofcom to take appropriate measures to protect viewers from potentially seriously harmful extrinsic material that is accessible through Digital Television Additional Services (DTAS). Ofcom possesses an existing power in section 4 of the Broadcasting Act 1996 to impose conditions in broadcast licences it considers appropriate having regard to its duties under broadcasting legislation. Ofcom can use that power further to this duty.
  2. Subsection (2) defines "seriously harmful extrinsic material".

Section 93: On-demand programme services: accessibility for people with disabilities

  1. This section introduces into Part 4A of the 2003 Act new sections 368BC, 368BD and 368CA, allowing the Secretary of State to require providers of VoD services to make their services more accessible to people with disabilities affecting their sight or hearing or both.
  2. New section 368BC provides the Secretary of State with the power, by regulations, to impose requirements on providers of on-demand programme services, including designated levels of subtitling, audio-description and sign language in programmes. Subsections (4) to (6) set out the steps that must be taken before regulations are made under this section.
  3. New section 368BD provides for the enforcement of the requirements set by regulations made under new section 368BC. Failure to comply with an enforcement notice issued under this section is itself grounds for the imposition of a financial penalty under section 368J of the 2003 Act.
  4. New section 368CA requires Ofcom to draw up and periodically review and revise a code giving guidance to on-demand programme services on steps to be taken to meet the requirements set by regulations under section 368BC, as well as other steps to ensure their services are made progressively more accessible for people with disabilities affecting their sight or hearing or both.

Section 94: On-demand programme services: specially restricted material

  1. This section amends the definition of ‘specially restricted material’ in section 368E (5) of the 2003 Act to include pornographic video works which have received an 18 certificate ("18 sex works") or other pornographic material which would receive an 18 certificate had it been submitted for classification. The latter will also cover excerpts from 18 sex works.

Section 95: Electronic programme guides and public service channels

  1. This section inserts new section 311A into the 2003 Act. Ofcom is placed under a duty to publish a report on the provision in electronic programme guides of information for accessing and selecting programmes included in public service channels and by means of on-demand programme services run by those who provide public service channels. After publication of this initial report, Ofcom must then review and revise its code of practice for electronic programme guides under s.310 of the 2003 Act. Subsection (3) requires that such a revision must be completed by 1 December 2020.

Section 96: Direct marketing code

  1. This section inserts new sections 52AA into the Data Protection Act 1998("the 1998 Act") and makes amendments to sections 51 and 52B to 52E.
  2. New section 52AA places the Information Commissioner under a duty to publish and keep under review a direct marketing code of practice.
  3. New section 52AA(1) and (2) provide that the code will contain practical guidance and any other guidance that promotes good practice in direct marketing activities. Good practice is defined as practice that appears to the Information Commissioner to be desirable including, but not limited to, compliance with the requirements of the 1998 Act and the PECR. When deciding what constitutes good practice, the Information Commissioner must have regard to the interests of data subjects and others.
  4. New section 52AA(3) requires that in preparing the code the Information Commissioner must consult, as he or she considers appropriate, with trade associations, data subjects and persons who represent the interests of data subjects.
  5. New section 52AA(4) applies the definition of direct marketing in section 11(3) of the 1998 Act, which defines direct marketing as the communication (by whatever means) of any advertising or marketing material which is directed to particular individuals.
  6. Subsections (3) to (8) amend sections 51(5A) and 52B to 52E of the 1998 Act so that these provisions apply to the direct marketing code of practice as well as to the data-sharing code of practice, established under section 52A. These provisions set out the procedure to be adopted when preparing the code, require the code to be kept under review and altered or replaced as necessary, provide for the publishing of the code and set out the legal effect of the code.

Section 97: Televising events of national interest: power to amend qualifying conditions

  1. This section inserts into section 98 of the Broadcasting Act 1996 a power for the Secretary of State to amend the conditions in subsection (2) of that section which a television channel must meet in order to be a qualifying service for the purposes of the listed events regime.
  2. New subsection (5A) enables the Secretary of State to amend by regulations the percentage of the population by which a channel must be received in order to be a qualifying service.
  3. New subsection (5B) prevents a change made by regulations under this section from altering the validity of pre-existing contracts between broadcasters and holders of rights to listed events. New subsection (5C) enables the inclusion of transitional, transitory, or saving provisions in regulations under this section.

Section 98: Strategic priorities and provision of information

  1. This section provides the Secretary of State with the power to set out a statement of strategic priorities which Ofcom must have regard to on: telecommunications, the management of the radio spectrum, and postal services.
  2. This would have to be consulted on (including with Ofcom) and laid before Parliament and subject to an annulment by either House within 40 days.
  3. Ofcom are also be required to share with the Secretary of State documents it is about to publish - subject to the exclusion certain publications specified by regulation. In the government’s view this will ensure that the government is better informed of key research, developments and decisions, and through this aid the government’s development of policy.

Section 99: OFCOM and Northern Ireland

  1. Ofcom is the UK-wide independent communications regulator overseeing television, radio, telecommunications, mobiles, postal services and the airwaves. It was established by the Office of Communications Act 2002 ("the 2002 Act").
  2. Section 1 of the 2002 Act provides that the Secretary of State appoints the chair and other members of Ofcom and that the Scottish Ministers appoint a member. Subsections (1) to (4) of this section amend section 1 of the 2002 Act to provide that the Minister for the Economy in Northern Ireland shall appoint one member of Ofcom and that, before doing so, they must consult the Secretary of State. Subsection (4) ensures that the member appointed by the Northern Ireland Ministers has the same functions as other non-executive members of Ofcom in the appointment of any executive members of Ofcom.
  3. The Schedule to the 2002 Act makes further provision about Ofcom including: qualification for membership, tenure of office, accounts and audit and annual reports. Subsection (5) of this section amends the application of the Schedule in relation to the member of Ofcom appointed by the Minister for the Economy of Northern Ireland. The functions relating to ensuring that a person being appointed to Ofcom does not have any conflict of interest and the functions relating to the member’s resignation or removal from office are conferred on the Northern Ireland Ministers. The member may only be removed from office by the Minister for the Economy in Northern Ireland following consultation with the Secretary of State.
  4. Subsection (7) of this section amends the Schedule to the 2002 Act to require the Comptroller and Auditor General to send a copy of Ofcom’s statement of accounts and the Comptroller and Auditor General’s report to the Minister for the Economy in Northern Ireland and for the Minister to lay those documents before the Northern Ireland Assembly. Similarly, subsection (8) amends the Schedule to the 2002 Act to require Ofcom to send its annual report to the Minister for the Economy in Northern Ireland and for the Minister to lay the report before the Northern Ireland Assembly.
  5. Section 44 of the Northern Ireland Act 1998 (power of Assembly to call for witnesses and documents: limitation by reference to transferred matters etc) gives the Northern Ireland Assembly the power to require persons and UK Ministers to appear before it to give evidence or produce documents in relation to any subject for which the Northern Ireland Assembly has general responsibility. Subsection (9) of this section gives the Northern Ireland Assembly the power to compel witnesses and documents from Ofcom in relation to the functions exercised by OFCOM in relation to Northern Ireland.

Section 100: Retention by OFCOM of amounts paid under Wireless Telegraphy Act 2006

  1. Section 400(1)(c) of the 2003 Act (Destination of fees and penalties) requires that that all charges imposed by Ofcom by or under its powers to manage the radio spectrum contained in Chapters 1 and 2 of Part 2 of the 2006 Act and the ordinary charging provisions in the new Part 2A (regulation of dynamic spectrum access services as inserted by section 8 of this Act) be paid into the Consolidated Fund. Section 401 of the 2003 Act (Power of Ofcom to retain costs of carrying out spectrum functions) - once that section is brought into force - enables Ofcom to publish a statement of principles (referred to in this section as "the statement") setting out the basis on which it can retain money that would otherwise be payable into the Consolidated Fund.
  2. This section provides that the statement no longer requires that the amounts retained by Ofcom in accordance with section 401 need be spent on or match only Ofcom’s own costs in performing spectrum management functions. Subsection (3) allows Ofcom’s statement to set out that it will use amounts retained by it under section 401 for such purposes as it specifies.
  3. Subsection (5) substitutes existing subsections (3) to (5) of section 401 with a new subsection (3) which requires that the amounts retained by Ofcom are objectively justifiable and proportionate to the costs in respect of which they are retained. Other limitations on how amounts are used are repealed.
  4. Subsection (7) of this section adds the requirement for the Secretary of State (in addition to the Treasury) to consent to the making, revision or withdrawal of a statement made in accordance with this section.

Section 101: International recognition of satellite frequency assignments: power of OFOM to charge fees

  1. This section inserts section 28A into the 2003 Act. This gives Ofcom the power to charge a fee for the services they provide to satellite operators to obtain or maintain international recognition for their satellite frequency assignments in line with the relevant provisions of the International Telecommunications Union’s Radio Regulations.

Section 102: Billing limits for mobile phones

  1. This section requires mobile phone service providers to offer customers entering into a mobile phone contract the option of placing a limit on their bill. Where a limit is set, the provider must notify the customer (so far as practicable) in reasonable time if a limit is likely to be reached and as soon as practicable when a limit is reached, and the limit may only be exceeded if the customer agrees after being so notified.

Section 103: Code of practice for providers of online social media platforms

  1. This section requires the Secretary of State to issue a code of practice to social media providers that sets out guidance as to action it may be appropriate for a social media provider to take against the use of their platform for conduct which is directed at an individual and involves bullying or insulting the individual, or other behaviour likely to intimidate or humiliate the individual.

Section 104: Internet filters

  1. This section provides that an internet service provider may restrict access to information, content, applications or services, for child protection or other purposes, where that is in accordance with the terms agreed by the end-user.

Section 105: Secondary ticketing: duty to provide information about tickets

  1. This section amends the Consumer Rights Act 2015 by inserting an additional requirement into section 90 to provide a unique ticket reference number where it is included to help the buyer identify the seat or standing area or its location.

Section 106: Power to create offence of breaching limits on internet and other ticket sales

  1. This section provides the power to introduce a criminal offence of purchasing tickets for a recreational, sporting or cultural event in excess of the maximum permitted. The intended offence will apply to tickets bought using automated software for events in the UK, but cover activity to obtain tickets that occurs outside the UK.
  2. The offence will be summary only, with a maximum punishment of an unlimited fine in England and Wales, and an exceptional summary maxima in Scotland.

Section 107: Prevention or restriction on use of communication devices for drug dealing

  1. This section inserts a new section 80A into the Serious Crime Act 2015 to provide the Secretary of State with a power to make UK-wide regulations, subject to the affirmative procedure (new subsection 11), which would, in turn, confer power on the civil courts to make a drug dealing telecommunication restriction order (‘DDTRO’) on application by the police or NCA.
  2. The effect of such an order will be to require the relevant communications provider to take whatever action the order specifies for the purpose of preventing or restricting the use of communication devices in connection with drug dealing offences, such as closing down mobile phone handsets, blocking SIM cards (and the associated phone number), and preventing the portability of phone numbers to another mobile network. New subsections (5) to (8) sets out the matters that must be addressed in any regulations, including who can make applications for such orders and provision about appeals. New subsection (9) sets out the matters that may be addressed in any regulations, for example, provision about time limits and costs. New subsections 4 and 12 would provide definitions of certain terms, including "drug dealing offence" and "communications provider".

Section 108: Regulations about charges payable to the Information Commissioner

  1. This section provides the Secretary of State with a power to charge data controllers for an amount equivalent to that needed to fund the Information Commissioner’s data protection and privacy and electronic communications regulatory functions. Once commenced, the charging power will replace the Information Commissioner’s current fees charging powers under Section 18 and 26 of the Data Protection Act 1998.

Section 109: Functions relating to regulations under section 108

  1. Subsection (1) makes it a requirement for the Secretary of State to consult with the Information Commissioner, such representatives of persons likely to be affected by the regulations as the Secretary of State thinks appropriate, and such other persons as the Secretary of State thinks appropriate, before making regulations under section 108.
  2. Subsection (2) sets out the expenses of the Information Commissioner for which charges can be levied under section 108.

Section 110: Supplementary provision relating to section 108

  1. This section makes it a requirement for the Secretary of State to use the affirmative procedure when making regulations under section 108, except for in the case of inflation increases, when the negative procedure will apply.

Section 111: Amendments relating to section 108

  1. This section repeals Part 3 of the Data Protection Act 1998. Part 3 imposes an obligation on data controllers to notify the Information Commissioner of certain types of data processing and the Commissioner maintains a register of all data controllers. It is necessary to repeal Part 3 of the 1998 Act as the General Data Protection Regulation, which will become part of UK law on 25 May 2018, removes the obligation on data controllers to notify the Information Commissioner.

Section 112: Power to apply settlement finality regime to payment institutions

  1. This section amends the Financial Services and Markets Act 2000, by inserting provisions that give HM Treasury the power to apply the settlement finality regime to payment institutions. The current settlement finality regime for payment systems and securities settlement systems is in the Financial Markets and Insolvency (Settlement Finality) Regulations 1999 (S.I. 1999/2979).
  2. Subsection (1) of new section 379A of the Financial Services and Markets Act 2000 sets out that HM Treasury may, by statutory instrument apply relevant secondary legislation that modifies the law of insolvency (or related law), or that relates to the securing of rights and obligations, to payment institutions to provide for the application of the settlement finality regime.
  3. Subsection (2) sets out the definition of a "payment institution." This cross-refers to relevant terms in the Payment Services Regulations 2009 (SI 2009/09) and includes certain persons with corresponding functions located outside the United Kingdom.
  4. Subsection (3) sets out the definition of a payment or securities settlement system. It is defined as arrangements between participants for, or in connection with, clearing or execution of instructions (by participants). Such arrangements must relate to the placement of money, payment obligations, or transfers associated with securities.
  5. Subsections (4) (5) and (6) are self-explanatory

Section 113: Bank of England oversight of payment systems

  1. This section introduces Schedule 9 (Bank of England oversight of payment systems) which extends Part 5 of the Banking Act 2009 to other, non-interbank, payment systems.

Section 114: Qualification in information technology: payment of tuition fees

  1. This section amends section 88 and Schedule 5 to the Apprenticeships, Skills, Children and Learning Act 2009. The amendments create a statutory duty on the Secretary of State for Education to ensure that specified qualifications in making use of information technology are free of charge to people aged 19 and over who do not already have a relevant qualification. The qualifications or descriptions of qualification to which the duty applies are to be set out in secondary legislation. The level of attainment demonstrated by the qualification to which the duty applies must be the level that the Secretary of State considers is the minimum required by a person aged 19 or over to be able to operate effectively in day-to- day life.

Section 115: Guarantee of pension liabilities under Telecommunications Act 1984

  1. This section gives the Secretary of State the power to make regulations modifying or supplementing section 68 of the Telecommunications Act 1984, which makes the Secretary of State liable for the payment of liabilities of BT plc for the payment of pensions, in the event of the company entering insolvent winding-up (the "Crown guarantee"). The regulations may make provision for the Crown guarantee to be extended to include liability for the payment of pensions of employees of BT plc who transfer to another company.

Section 116: Regulations under section 115

  1. This section specifies that the power to make regulations under section 115 is exercisable only with the consent of the Treasury and after the Secretary of State has consulted the following: the Pensions Regulator; BT plc; the Trustee of the BT Pension Scheme; any transferee or successor to which the regulations apply; and any other appropriate persons. A statutory instrument containing regulations under section 115 may not be made unless a draft has been laid before and approved by both Houses of Parliament.

Part 7: General

Section 117: Financial Provisions

  1. This section is self-explanatory.

Section 118: Commencement

  1. The amendments to Ofcom’s powers in relation to the BBC came into force on Royal Assent. Section 112, giving HM Treasury the power to include payment institutions in the settlement finality regime, also came into force on Royal Assent, as did sections 115 and 116 in respect of the power to amend the Crown guarantee of pension liabilities under the Telecommunications Act 1984.
  2. A number of provisions will be brought into force two months after Royal Assent. These include the provision relating to universal service broadband obligations, powers for Ofcom to set general conditions on communication providers in respect of switching and automatic compensation as well as Ofcom’s powers to collect and report information. A number of technical matters in respect of spectrum and the provision relating to the direct marketing code will also be brought into force at the same time. Section 113 and Schedule 9 also come into force two months after Royal Assent, enabling HM Treasury to recognise non-interbank payment systems.
  3. A commencement date of 1 June 2020 will apply to the measure concerning the TV licence concession. The government has committed to maintain free TV licences for those aged 75 and over for the whole of this Parliament, with responsibility for the policy passing to the BBC in the next Parliament. The timing of the implementation of this measure was agreed with the BBC in July 2015.
  4. The remaining measures in the Act will be brought into force by regulations.

Section 119: Extent

  1. Detailed analysis of the extent of the Act can be found at Annex A. Otherwise this section is self-explanatory.

Section 120: Short title

  1. This section is self-explanatory.

Schedule 1: The electronic communications code

  1. The electronic communications code was previously found in the Telecommunications Act 1984 (see Schedule 2 of that Act). This Act replaces that code with a new code (see Schedule 1 of this Act), which is inserted into the 2003 Act (as Schedule 3A to that Act). In these notes, we refer to the existing code (meaning the code in Schedule 2 to the 1984 Act) and the new code (in Schedule 1 to this Act) where appropriate to draw out similarities and differences between the previous and new legislation. References to the existing code and the new code adopts the terminology used in paragraph 1 of Schedule 2 to this Act (transitional provisions relating to the electronic communications code).

Part 1: Key Concepts

  1. Paragraph 1 is introductory and signposts the location of other definitions in the code.
  2. Paragraph 2 defines "operators" as firstly, those who have been designated by Ofcom under section 106 of the 2003 Act as being persons to whom the code applies and secondly (in certain circumstances) the Secretary of State or a Northern Ireland department. The amendments made to section 106 of the 2003 Act by section 4 of this Act extend the definition of operators to include not only providers of electronic communications networks but also providers of infrastructure systems (see Paragraph 7). Operators are the only persons who can exercise code rights under the electronic communications code.
  3. Paragraph 3 sets out the code rights: a list of specific rights relevant to the installation on, under or over land of electronic communications apparatus. These are broadly the same as the equivalent rights in the existing code. The code right to lop or cut back trees and vegetation that interfere with electronic communications apparatus is new. Note also the definition of land in paragraph 108 which clarifies that the code does not confer a right on an operator to install apparatus on other apparatus. Paragraph 3 provides that code rights can only be exercised for the "statutory purposes".
  4. Paragraph 4 defines the statutory purposes as the provision of the operator’s "network" or the provision of an "infrastructure system". These terms are defined in paragraphs 6 and 7.
  5. Paragraph 5 defines electronic communications apparatus i.e. the apparatus which can be installed on, under or over land. This definition is important for two reasons. Firstly, it defines the scope of what can be installed and kept on land under the provisions of the code. Secondly, because paragraph 108(1) specifically provides that land does not include electronic communications apparatus, anything that falls within the definition of ‘electronic communications apparatus’ (as it is set out in paragraph 5) cannot have code rights imposed against it. This has the practical effect of ensuring that one code operator cannot seek to exercise code rights against the apparatus of another (or indeed against the apparatus of a person who is not a code operator). Paragraph 5 defines electronic communications apparatus in broad terms, which reflect its diversity. Whether a particular structure or thing has been adapted to a point at which it can properly be considered as electronic communications apparatus is a question of fact, which will depend on the specific circumstances, including what the parties have agreed, the nature of the installation and the extent of the adaptation.

Part 2: Conferral of code rights and their exercise

  1. Paragraph 8 is introductory and self-explanatory.
  2. Paragraph 9 provides that only the occupier of land may confer a code right on an operator. This reflects the position in paragraph 2(1) of the existing code.
  3. Paragraph 10 makes provision for who else is bound by code rights. Code rights bind not only the occupier but also any other person with an interest in the land who has agreed to be bound by the code rights; persons who are the successors in title to any person who is bound; and any person whose interest is created after the right is conferred and derived from an interest that is bound.
  4. Paragraph 11 makes provision about the formal requirements for an agreement and any subsequent variation of it.
  5. Paragraph 12 provides that code rights may be exercised only according to the other terms of the agreement. The equivalent provision is found in paragraph 4 of the existing code. This shows the importance of compliance by the operator with each of the surrounding terms of the operator’s agreement with the landowner. Its effect is that, where the operator exercises the rights agreed, in accordance with the terms of the agreement, they do so with the statutory protection of the code and as a result, are not vulnerable to common law claims in nuisance or trespass. Paragraph 12(3) provides that if a person with a freehold or leasehold interest in the land is not bound by the agreement under which the code rights are granted, the operator does not have statutory protection against such a person. This provision is intended to encourage operators to obtain agreement from each person with an interest in the land (where it is necessary for the operator to have agreement from that person). Paragraph 12(4) provides that the benefit of a statutory covenant is preserved in relation to the exercise of code rights (and has equivalent provision in paragraph 4(1) of the existing code).
  6. Paragraph 13 provides that an operator who installs electronic communications apparatus with the agreement of the occupier of "land A", may not obstruct or interfere with access (including emergency access) to or from "land B" (neighbouring land) without obtaining a code right to do so from the occupier of "land B" (and from such other persons with an interest in land B as the operator may require). It is important to note that although land A and land B might be adjoining or situated closely together, that is not an essential requirement in the context of paragraph 13. For example, if there was a track leading from a road across land A, through land C to land B, and electronic communications apparatus was installed across the track on land A, then access to land B might be obstructed even though the obstruction might be situated, say, two miles or more from land B and on land that did not adjoin land B. Paragraphs 13(4) and (5) provide that where "land B" is a street, road or tidal land (in relation to which special provisions apply under Parts 8 and 9 of the code, permitting operators to install and keep apparatus without prior agreement), the agreement of the occupier of "land B" is not required if access to "land B" from "land A" is obstructed by electronic apparatus on "land A". Paragraph 13 replicates the effect of paragraph 3 of the existing code. See also paragraphs 38 and 39 in Part 6 of the code as they relate to the rights of a person occupying neighbouring land to require removal of apparatus that is obstructing access to such land.
  7. Paragraph 14 explains the relationship between the code and statutory land registration rules. Any non-compliance with land registration requirements does not affect who is bound under paragraph 10 of the code.

Part 3: Assignment of code rights, and upgrading and sharing of apparatus

  1. Part 3 of the new code makes provision about the assignment of code rights, and the upgrading and sharing of apparatus.
  2. Paragraph 16 provides that an operator may assign an agreement under which code rights are conferred to another operator, enabling the second operator to ‘stand in the shoes’ of the first. An operator may assign only the entirety of the agreement and the code rights it contains and may not separately assign the individual code rights it confers. The other party to the agreement (the site provider) is not permitted to prevent or make such an assignment subject to conditions. After the date of the assignment the assignor operator is not liable for any breach of the agreement by the assignee operator, provided that notice of the assignment is given to the other party (i.e. to the site provider). If, however, the assignor operator had agreed to guarantee the performance of the assignee operator, in accordance with paragraph 16, the guarantee will still apply. Such a guarantee agreement may impose liabilities on the assignor operator only for the obligations of its immediate assignee operator. The same principle applies as between subsequent assignors and assignees in the event that the agreement is the subject of further assignments. Paragraph 16 does not affect the position of third party guarantees that may have been given in relation to the original agreement (e.g. a guarantee given to a site provider by a bank or group company of the operator).
  3. Paragraph 17 confers a statutory right on an operator who has obtained an agreement to install or keep apparatus on land to upgrade or share that apparatus, without needing the agreement of the site provider, or having to pay in order to do so. Specific conditions must be met for this right to apply. If the conditions are not met, the operator must seek agreement for the right, in the normal way, under Part 2. Paragraph 17(5) prevents the parties contracting out of the right or making it subject to conditions. It should be noted that paragraph 24 (which deals with the amount to be paid for code rights) prevents the right in paragraph 17 from being taken into account when the value of an agreement is being considered.
  4. Paragraph 18 has the same effect as paragraph 29 of the existing code. Its purpose is to facilitate sharing of apparatus between: (i) one or more operators to whom the code has been applied by Ofcom under section 106 of the 2003 Act; (ii) other providers of electronic communications networks to whom the code has not been applied by Ofcom; and (iii) qualifying persons whom the Secretary of State may designate by regulations. At least one of the parties to such an agreement must be an operator to whom Ofcom has applied the code. The effect of paragraph 18 is that the provisions of the code may not be interpreted so as to restrict the operators’ agreement to share apparatus with each other. Paragraph 18 does not affect the interpretation of an agreement between an operator and a site provider.

Part 4: Power of court to impose agreement

  1. Part 4 makes provision for the imposition by the court of an agreement conferring code rights where such an agreement cannot be reached consensually under Part 2. The power of the court to impose agreements and the granting of compulsory access to land was an essential part of the existing code (see paragraph 5 of the existing code). The meaning of "the court" is set out in Part 16.
  2. Paragraph 20 sets out the circumstances in which the court can impose an agreement. It replicates much of the effect of paragraphs 5(1), 5(2) and 5(7) of the existing code.
  3. Paragraph 21 sets out the threshold test that the court must apply and the conditions that must be met for imposing an agreement. It replaces the test in paragraph 5(3) of the existing code. The court must have regard to any prejudice to the site provider and whether it can be compensated for, as well as the public benefit likely to arise from any order imposing code rights. Where both these requirements are met, the court may – but is not obliged to – impose an agreement. Nothing in these provisions prevents the court from having regard to other factors in deciding whether this is appropriate. (It should be noted that Part 12 of the code sets out who, other than the person whose agreement is required for apparatus to be installed on land, has the right to object to the proposed installation of apparatus).
  4. Paragraph 22, like paragraph 5(7) of the existing code, provides that the court’s order takes effect as an agreement under Part 2 of the code. This means any provisions applicable to an agreement reached in accordance with Part 2 of the code will apply to an agreement imposed by the courts in the same way as they apply to an agreement reached without the court’s intervention. For example: the rights to assign an agreement or to upgrade and share apparatus set out in paragraphs 16 and 17 will apply to a court imposed agreement as if it had been reached under Part 2 of the code.
  5. Paragraph 23 sets out key terms that the court must include, or consider including, in the court-imposed agreement. It contains provisions corresponding to paragraphs 5(4) and 5(5) of the existing code. Paragraph 23(2) provides that the court must include any terms that it considers appropriate. This might include, for example, that an operator may share their apparatus with another, in circumstances where the extent of the sharing sought goes beyond that provided by the statutory right to share in paragraph 17. The inclusion of such a term, conferring a contractual right on an operator, would be taken into account also in determining the consideration to be paid to the site provider in accordance with paragraph 23(3).
  6. Paragraph 24 makes provision for how consideration (the price) is assessed for the rights that the court has ordered. This is to be assessed as the market value of the rights being granted and of the particular terms of the agreement. The market value excludes any additional value deriving from electronic communications use, i.e. it is "no scheme" value. The value of the rights contained in paragraphs 16 and 17, which relate to the assignment of an agreement or to upgrading and sharing apparatus, is specifically excluded from the assessment of market value, to ensure that no "premium" is added for rights conferred by statute, not by agreement.
  7. Paragraph 25 provides for the court to order an operator to pay compensation to a person bound by a code right for loss or damage as a result of the imposition of the code right on usual compensatory principles. Paragraph 84 makes further provision about such compensation.
  8. Paragraph 26 provides that an operator may apply for "interim code rights". This enables code rights to be granted on an interim basis pending the parties reaching, or the court imposing, a final agreement. Rights may be granted on an interim basis either (a) where the parties agree to the making of the order and the terms of the interim agreement (which may be the case, for example, where the only issue not agreed between them is the consideration to be paid); or (b) when the court considers that there is a good arguable case that the interim code right will be made permanent at a final hearing. If the right is not made permanent at a final hearing, the interim right ends and the operator must remove the apparatus in accordance with Part 6. The power to order interim code rights was not part of the existing code in Schedule 2 to the Telecommunications Act 1984.
  9. Paragraph 27 provides for the court to be able to grant "temporary code rights" on application by the operator. It corresponds to paragraph 6 of the existing code. This right is different from an interim code right in that it arises where there is existing apparatus already on the land, but the operator has no right to keep it installed and accordingly requires temporary code rights to maintain the apparatus and the network service while they seek permanent rights. The temporary code rights will continue until either the operator has secured permanent code rights or the person with interest in the land has secured the right to enforce removal of the apparatus. When assessing whether or not new permanent code rights should be granted, the court must disregard the fact that the apparatus is already on the land.

Part 5: Termination and modification of agreements

  1. Part 5 makes provision about the termination and modification of agreements, and for statutory continuity of agreements.
  2. Paragraphs 29 and 30 provide for code rights to continue as a matter of statute notwithstanding that they may have come to an end in accordance with their contractual terms. In England and Wales the Landlord and Tenant Act 1954 contains similar provisions that apply to business tenancies generally, and there is similar legislation in Northern Ireland (the Business Tenancies (Northern Ireland) Order 1996). Accordingly paragraph 29 clarifies when the continuity provisions of Part 5 of the code are applicable, and when provisions in other statutes apply, in order to avoid ambiguity and conflict between the separate statutory regimes.
  3. Paragraph 30 provides that code agreements continue in effect after the date of termination. This ensures that there is continuity of rights, and of network provision, pending determination of an application by the operator for new permanent rights or of an application by a site provider for the right to remove the apparatus.
  4. Paragraph 31 and 32 makes provision for how a site provider who is party to a code agreement may bring that agreement to an end, the required notice period that must be given, and the grounds on which the site provider is entitled to terminate the agreement. The procedure requires the site provider to give a notice to the operator, the effect of which is to end the agreement, unless the parties agree otherwise, or the operator gives a counter-notice within 3 months proposing that the existing agreement continues or proposing new terms. The operator must then apply to the court for an order within 3 months of serving the counter-notice. If, on such an application, the court considers any of the required grounds to have been made out by the site provider, it must order the agreement to come to an end. Otherwise, it must make an order pursuant to paragraph 34 (see below).
  5. Paragraph 33 makes provision so that where a code agreement comes to an end, an operator may by notice seek new or modified terms of agreement from the site provider or, failing agreement, from the court.
  6. Paragraphs 34 and 35 set out the orders the court may make on an application made by the operator or site provider under paragraphs 32 or 33. The court can order that the right or rights may (or may not) continue to be exercised, the period for which rights may be exercised and whether any of the other terms of the agreement, including terms as to consideration, should remain the same or be modified. The court may order that a new code right or rights be exercised, that a new agreement be entered into and, if agreement on new terms is not reached by the parties, the court can specify the terms. When specifying the terms, the court must include: terms as to payment, which should be determined on the basis set out in paragraph 24; terms designed to minimise loss and damage; the period of the agreement; and any compensation for loss and damage (which can include expenses, diminution in value and reinstatement costs as set out in paragraph 84). Under sub paragraphs (14) and (15), the court can also order payment of the difference between the new rate of consideration and the consideration actually paid for the period between the old agreement ending and the new agreement being imposed, where the new rate of consideration is higher.

Part 6: Rights to require removal of electronic communications apparatus

  1. Paragraph 36 introduces Part 6 of the code, which sets out who can require the removal of electronic communications apparatus, and / or require the restoration of the land to its former condition, the circumstances in which these rights arise and the procedure that must be followed. Paragraphs 21 and 22 of the existing code included provisions that correspond to some extent to this part, but the provisions in Part 6 of the code are much more detailed.
  2. Paragraph 37 provides that a landowner may require the removal of apparatus only if one of five conditions is met. The effect of paragraph 37(9) is important: if a landowner has an additional legal right or relationship with the operator, so as to have legal entitlement to require removal of apparatus also under an enactment (other than the code), or otherwise than under an enactment, then the landowner can exercise those rights to require removal under paragraphs 41 and 42 and in so doing is acting as a "third party" for the purposes of those paragraphs.
  3. Paragraph 38 sets out the two conditions, both of which must be met, for a landowner or occupier of neighbouring land (as defined) to be entitled to require the removal of electronic communications apparatus that obstructs access to their land. This is relevant where apparatus situated on land A obstructs access to land B. It is important to note that although land A and land B might be adjoining or situated closely together, that is not an essential requirement in the context of paragraph 38. For example if there was a track leading from a road, across land A, then through land C to land B, and electronic communications apparatus was installed across the track, on land A, then access to land B could be obstructed even though the obstruction might be situated, say, two miles or more from land B, and on land not adjoining land B. See also paragraph 13 of the code.
  4. Paragraph 39 makes provision enabling landowners and occupiers of neighbouring land (as defined) to require an operator to disclose whether they own apparatus on the land pursuant to a code right. There are costs consequences for the operator in any proceedings to remove the apparatus if they have such rights but fail to disclose the information within 3 months.
  5. Paragraph 40 makes provision for enforcing the removal of apparatus when the landowner is no longer entitled to keep it installed. In order to protect networks and apparatus, removal may be enforced only in accordance with the procedures described, which encourage the parties to agree how apparatus will be removed. If there is no agreement, or the operator does not comply with the agreement for removal, the landowner can apply to the court for an order enforcing removal.
  6. Paragraph 41 makes provision for persons entitled to remove apparatus under another enactment, or on other legal grounds. Paragraph 41 defines such a person as a "third party" to distinguish their entitlement to remove apparatus from the entitlement to remove apparatus of a person acting as a landowner (see paragraph 37) and from the entitlement of an occupier or landowner of neighbouring land (see paragraph 38). This might apply for example in the case of a planning authority which seeks to remove apparatus that is installed in breach of planning legislation. Removal must be in accordance with the procedure set out in paragraph 41, in order to protect apparatus and networks. The provisions are based on those in paragraph 21 of the existing code. Note that a third party, as defined, may also in some circumstances be a landowner. However if such a landowner were exercising rights under paragraph 41 or 42, they would be acting as a third party for the purposes of those paragraphs. See also the explanatory note for paragraph 37(9) above.
  7. Paragraph 42 sets out how paragraph 41 applies in cases where a third party has a right, arising from another statute or enactment, to require the alteration of apparatus because of changes to a street, road or other public right of way. These provisions are based on those in paragraph 21(10) of the existing code, and apply in the same way.
  8. Paragraph 43 makes provision for a landowner or occupier of land to require an operator to restore land to its original condition (before the exercise of a code right). The procedure encourages the landowner and operator to reach agreement, but enables the landowner to seek a court order if agreement is not reached. The right under this paragraph to restore the land is not dependent on apparatus being removed from the land. It might for example apply where apparatus has previously been removed from the land but the land was not properly restored to its original condition, and it might apply where the land was disturbed in preparation for installing apparatus but the apparatus was not installed for some reason.
  9. Paragraph 44 sets out the orders a court may make to enforce removal of apparatus under paragraphs 40 – 43. These include an order for the operator to pay compensation for the period during which the apparatus was on the land after the right to remove arose (paragraph 44(5)). If the operator does not comply with an order to remove, the court may permit the landowner to remove the apparatus. Paragraph 44(3) includes provisions corresponding to paragraphs 21(7) and 21(8) of the existing code.

Part 7: Conferral of transport land rights and their exercise

  1. Part 7 of the code applies to "transport land" and "transport undertakers", which are defined in paragraph 46. Part 7 rewrites what were paragraphs 12 to 14 of the existing code. The provisions set out the rules that apply when an operator wishes to cross (with their electronic communications apparatus and networks) a canal, tramway or railway, so that the interests of electronic communications network and the relevant transport undertaker (as defined) are appropriately protected. The relevant provisions in the existing code were considered in some detail by the Court of Appeal in Geo Networks Limited v The Bridgewater Canal Company Limited [2010] EWCA Civ, 1348, an important case which clarified the meaning and effect of the relevant provisions in the existing code and which is still of relevance to the equivalent redrafted provisions in the new code. Transport land rights do not require the operator to seek an agreement under Part 2 (or Part 4) of the code: they are conferred on an operator automatically as code rights by paragraph 47(1), subject to strict regulation of those rights by the remaining provisions of Part 7.
  2. Paragraph 48 defines a "transport land right". Paragraphs 48(2) and (3) largely provide that the operator is not required to cross the transport land by the most direct route but permits the operator to go alongside the railway, canal or tramway for up to 400 metres, for example if the land immediately opposite the point at which the line enters the transport land is unsuitable for taking a line across (e.g. a reservoir).
  3. The exercise of transport land rights must not interfere with traffic on the transport undertaking (paragraph 48(4)). The exercise of rights by the operator is subject to a notice procedure (in non emergency cases) (paragraph 49); and the transport undertaker may object to the proposed works (paragraph 50).
  4. Different notice procedures apply if the operator needs to carry out emergency works and the transport undertaker can require the operator to pay compensation when the emergency procedure is relied on by the operator (paragraph 51).
  5. Disputes between the operator and transport undertaker, concerning objections to proposed works and amount of the compensation to be paid, are referred to expert arbitration (paragraph 52) rather than to the court. The arbitrator’s powers include the power to order the operator to pay compensation for loss or damage and consideration for the right of the operator to carry out the work.
  6. Paragraph 53 allows a transport undertaker to give notice requiring an operator to alter the line or other electronic communications apparatus on the grounds that it will interfere with the carrying on of the transport undertaking. Disputes about altering the electronic communications apparatus so installed are referred to the court (not to an expert arbitrator). In determining whether to make an order, the court must have regard to the public interest in there being access to a choice of high quality electronic communications services.
  7. Paragraph 54 is a provision not found in the existing code. It provides that where land ceases to be transport land, the operator may continue to exercise the transport land rights in accordance with Part 7 in relation to apparatus already on the land and in relation to substantially similar replacements. This is subject to the ability of the occupier of the land to give 12 months’ notice to terminate such rights. If the occupier takes that step, the operator (the Part 7 rights having ended) would need to secure new rights by agreement under Part 2 or court order under Part 4.
  8. Paragraph 55 provides that a criminal offence is committed if an operator commences works in contravention of the provisions of Part 7. This replicates the provisions in the existing code and underlines the seriousness of protecting transport undertakings from works which do not follow the required notice procedures. An operator who is guilty of an offence will be liable on conviction to a fine not exceeding level 3 on the standard scale.

Part 8: Conferral of street work rights and their exercise

  1. Part 8 of the code applies to streets in England and Wales and roads in Northern Ireland and Scotland, and gives the operator certain rights in relation to such streets and roads, which may be exercised without agreement or a court order. Part 8 replicates what was paragraph 9 of the existing code.
  2. Paragraph 56 sets out the scope of Part 8. Paragraph 7 defines the streets in England and Wales and the roads in Scotland and Northern Ireland to which Part 8 applies.
  3. Paragraph 58 provides that the operator can exercise the street work rights for the statutory purposes (defined in paragraph 4 of the code), allowing the operator to exercise the rights without agreement under Part 2 or a court order under Part 4, subject to the remaining provisions of Part 8 and subject of course to the requirements of other legislation (see paragraph 99 of the code).
  4. Paragraph 59 sets out the rights that can be exercised under Part 8. The street work rights allow the operator to install and keep apparatus in, on, under or along or across a street or road. There are associated rights to enter land, inspect, maintain, adjust, alter, repair, upgrade and operate the apparatus and to carry out associated works.

Part 9: Conferral of tidal water rights and their exercise

  1. Part 9 of the code applies to "tidal water and lands" (as defined). Part 9 broadly corresponds to much of the content of what was paragraph 11 of the existing code. It is important to note that Part 9 provides for different rights in relation to tidal water and lands which are in the ownership of the Crown, and tidal water and lands which are not in the ownership of the Crown.
  2. Paragraph 60 sets out the scope of Part 9. Paragraph 61 defines "tidal waters or lands".
  3. Paragraph 62 provides that the operator can exercise the tidal water rights for the statutory purposes, (defined in paragraph 4 of the code). The operator may exercise the rights without agreement under Part 2 or a court order under Part 4. This is however subject to the remaining provisions of Part 9, and to the provisions of other enactments (see paragraph 99 of the code).
  4. Paragraph 63 sets out what rights can be exercised under Part 9 (defined as a "tidal water right"). The tidal water rights allow the operator to install and keep other apparatus on, under or over tidal water or lands, and there are associated rights to enter land, inspect, maintain, adjust, alter, repair, upgrade and operate the apparatus and to carry out associated works.
  5. Paragraph 64 requires the agreement of the Crown in accordance with paragraph 104 of the code before the tidal water rights can be exercised on Crown tidal water or lands. This is not the same as an agreement under Part 2 and so the Crown cannot be the subject of a court-imposed agreement (for a tidal water right) under Part 4. If the Crown agrees to confer a tidal water right, paragraph 64 provides that disputes about the amount to be paid for such rights by an operator can be referred to an independent third party valuer, who is charged with determining the market value. The assessment of market value corresponds to the "no-scheme" approach found in paragraph 24 of the code.

Part 10: Undertaker’s works affecting electronic communications apparatus

  1. Part 10 of the code is concerned with regulating the works of statutory undertakers when those works affect electronic communications apparatus. It replicates what was paragraph 23 of the existing code in Schedule 2 to the Telecommunications Act 1984.
  2. Paragraph 65 sets out the scope of Part 10.
  3. Paragraph 66 sets out the key definitions of "undertaker" and "undertaker’s works". The definition includes other code operators, as well those who, under statute, carry on a railway, canal, tramway, road transport, water transport, inland navigation, dock, harbour, pier or lighthouse undertaking.
  4. Paragraphs 67 and 68 set out the notice requirements that must be complied with before the undertaker may carry out non-emergency works that interfere with an electronic communications network.
  5. Paragraph 68 provides that an operator served with a notice of proposed works may give counter-notice, requiring the undertaker to alter electronic communications apparatus (as a result of the proposed works) under the supervision and to the satisfaction of the operator, or stating that the operator itself intends to make such an alteration.
  6. Paragraph 69 requires the undertaker who carries out non-emergency works to pay the operator for any loss or damage sustained as a result of such works and for expenses incurred by the operator in supervising the works.
  7. Paragraph 70 provides that an operator may alter electronic communications apparatus in connection with non-emergency undertaker’s works where it has given counter-notice that it intends to do so. In such a case, the undertaker must pay the operator any expenses associated with the alteration and the amount of any loss or damage incurred as a result of the alteration. This amount is recoverable in any court of competent jurisdiction.
  8. Paragraph 71 sets out the notice requirements that must be complied with for the undertaker to alter apparatus in carrying out "emergency undertaker’s works" (defined in sub-paragraph (7)). The undertaker must give notice of the emergency works as soon as is practicable after beginning the works. The undertaker must complete the works to the satisfaction of the operator and must pay the operator any expenses incurred in supervising the work and the amount of any loss or damages sustained as a result of the alteration.
  9. Paragraph 72 deals with enforcement of Part 10 and corresponds to what were paragraphs 23(8) and (9) of the existing code in Schedule 2 to the Telecommunications Act 1984. It makes provision for criminal offences where an undertaker, or an agent of an undertaker, commences works in contravention of the provisions of Part 10. An undertaker or agent who is guilty of an offence will be liable on conviction to a fine not exceeding level 3 on the standard scale, or level 4 if the service provided by the operator’s network is interrupted.

Part 11: Overhead apparatus

  1. Part 11 of the code deals with overhead apparatus. It replicates what were paragraphs 10 and 18 of the existing code in Schedule 2 to the Telecommunications Act 1984.
  2. Paragraph 74 provides that an operator has the right to install overhead lines that pass above third party land (on which no apparatus is installed) without the requirement of the agreement (under Part 2) of the person over whose land the lines pass. This is subject to the apparatus to which the lines are attached being on land on which the operator has a right to install such apparatus. The lines must be at least three metres above the ground, must not pass within two metres of any building and may not interfere with the carrying on of any business carried out on that land.
  3. Paragraph 75 provides that operators must attach notices to any apparatus, the whole or part of which is three metres or more above the ground. This includes lines and other apparatus. The operator must attach a notice (within three days, beginning with the day after installation) to every major item of apparatus, or (if no new major apparatus has been installed) to the nearest existing major item of apparatus to which the new apparatus is connected. The notice must be legible, secure and provide the name and address of the operator to which an objector can send notice of objection under Part 12 of the code (see below for the right to object to certain apparatus). Enforcement is dealt with in paragraphs 75(5) and (6) which provide that it is a criminal offence for an operator to breach the notice requirements of paragraph 75, punishable on summary conviction by a fine not exceeding level 2 on the standard scale.

Part 12: Rights to object to certain apparatus

  1. Part 12 of the code sets out the rights that particular persons have to object to certain types of apparatus and the time periods within which those objections may be made. The rights do not apply to persons whose agreement is required under Part 2, since those persons’ rights can be considered and established in the context of negotiating the code agreement. The rights in this Part apply to persons who may be affected by the installation of apparatus but whose agreement is not required for the installation of such apparatus. The nature of the right to object depends on how soon the objection is made after installation of the apparatus. Rights to object are significantly more restricted if objection is made later than 12 months after installation. Rights to apply to "the court" (See Part 16, paragraph 94) to pursue an objection are subject to specific time periods.
  2. Paragraph 77 sets out which people are eligible to object and which types of apparatus they are able to object to.
  3. Paragraph 77(7) is an exception to the right to object. It provides that there is no right to object if the new apparatus installed is not substantially different from apparatus that it is replacing and is not in a significantly different position.
  4. Paragraph 78 provides that the right to object is exercised by giving notice to the operator. The right to object and the procedure for exercising this right depend on whether notice of objection is given within 12 months of installation, or after that period.
  5. Paragraph 79 sets out the procedure and the time periods that apply if objection is made within 12 months of installation. After two months of having given notice, but within four months of having given notice, the objector may apply to the court to have the objection upheld. The court must uphold the objection if two conditions are met. The first condition is that the apparatus materially prejudices the person’s enjoyment of, or interest in, the land. The second is that the court must be satisfied that there are possible alterations to the apparatus which:

    6. (a) will not substantially increase the cost of or diminish the quality of the service provided to users of the network;

    (b) will not involve the operator in substantial "additional expenditure". Additional expenditure in this context has a particular meaning: it is not the cost of altering the apparatus that is taken into account in assessing additional expenditure, but rather the difference in cost between the original installation and the additional cost of the proposed altered installation if the latter had been installed from the outset. Similarly if the court considers that the apparatus has been unnecessarily installed, expenditure incurred in removing it is not to be taken into account; and

    (c) will not give another person a right to object "at least as good" as the first objector’s. Subparagraph (c) can be illustrated by an example. Person A objects to an installation of apparatus because it prejudices A’s enjoyment of A’s land. The court determines that the only possible alterations to the apparatus which would address A’s objections, would themselves prejudice person B’s enjoyment of B’s land and would give B a right to object as strong as, or stronger than, A’s objection. If that is the case, the court is not required to uphold A’s objection.

    If these conditions are met, the court can require the apparatus to be changed or moved, and (in either case) the court can direct that further objections may not be made against an installation authorised by the court.

  6. Paragraph 80 provides the procedure that applies if the notice of objection is given later than 12 months after installation. After two months of having given notice, but within four months of having given notice, the objector may apply to the court to have the objection upheld. The court’s powers are more limited than under paragraph 79. It may uphold the objection only if it is satisfied that the alteration is necessary to enable the objector to carry out an improvement to the land and the alteration will not substantially interfere with the operator’s network service. Sub-paragraph (7) provides that the objector must, unless the court orders otherwise, pay the operator’s costs of the alteration.
  7. Paragraph 81 sets out limitations on the court’s powers where the court is considering making an order under paragraph 79 (directing the alteration of any apparatus or authorising the installation of any apparatus) or under paragraph 80 (directing the alteration of any apparatus). The court must not make an order unless the operator has the necessary code rights to effect the alteration or unless the court imposes such code rights as are necessary to effect the alteration. The court also has the power under this paragraph to require the objector to bring matters to the notice of other interested persons.

Part 13: Rights to lop trees

  1. Part 13 of the code allows operators in applicable circumstances to lop trees or other vegetation that overhangs a street in England and Wales or Northern Ireland or a road in Scotland. Part 13 replicates what was paragraph 19 of the existing code in Schedule 2 to the Telecommunications Act 1984, but in addition extends the right to lop trees to include the lopping or cutting back of vegetation other than trees.
  2. Under paragraph 82, the operator may require the tree to be lopped or vegetation to be cut back where it overhangs the street. If no objection is made by the owner of the land on which the tree or vegetation is situated within 28 days of the operator giving notice of that requirement, the operator may itself have the tree lopped or the vegetation cut back. If the owner of the tree or of other vegetation objects within the relevant time period, the court (see Part 16, paragraph 94) decides the matter. The operator must reimburse the landowner for any expenses associated with the lopping or cutting back, or for any loss or damage caused. This right applies to trees that are protected by a tree preservation order and trees in conservation areas but, by virtue of paragraph 99(1) of the code, is subject to the provisions of any relevant tree preservation legislation. Such legislation provides certain exceptions for statutory undertakers including operators.

Part 14: Compensation under the code

  1. Part 14 contains general provision about compensation.
  2. Paragraph 84 makes provision about the powers of the court to order compensation in relation to agreements imposed under Part 4 and in relation to the removal of apparatus under Part 6.
  3. Paragraph 84(2) enables the court to order compensation for reasonable legal and valuation costs incurred by a landowner. This is because the landowner’s reasonable costs in obtaining legal and / or valuation advice are part of the cost to a landowner of agreeing (or being ordered by the court) to have apparatus installed on their land. This provision does not however interfere with the court’s discretion to award costs that relate to a dispute about code rights. Paragraph 84(7) provides that compensation cannot exceed actual loss.
  4. Paragraph 85 makes general provision for the application of established statutory rules for the assessment of rights to compensation for injurious affection to neighbouring land where rights under Parts 2 to 9 are exercised.
  5. Paragraph 86 provides that no other rights to compensation arise in relation to the lawful exercise of code rights other than as provided by the code.

Part 15: Notices under the code

  1. Part 15 makes provision about requirements for the form of notices given under the code and about procedures for giving notices. Part 15 makes clear that giving notices in the proper form is an important aspect of the code and the potential consequences of not doing so include having to bear wasted costs, or the notice not having legal effect. Part 15 accordingly encourages legal certainty, and so protects the rights of both operators and landowners.
  2. Paragraph 88 makes requirements for the form of notices given by operators under the code. An example of when an operator is required to give such a notice is when they are requesting an agreement for code rights from a landowner (see paragraph 20(2) of the code). Paragraph 88(1) requires the operator’s notice to give a proper explanation to the landowner of the effect of the notice and the steps the landowner may take in response. Operator notices which do not comply with paragraph 88 are not valid notices.
  3. Paragraph 89 makes requirements for the form of notices given by a person other than an operator (e.g. a landowner).
  4. Paragraph 90 requires Ofcom to prescribe the form of a notice to be given under each provision of the code that requires a notice to be given.
  5. Paragraph 91 makes requirements about the procedures for giving notice.

Part 16: Enforcement and dispute resolution

  1. Part 16 concerns how and where agreements under the code may be enforced. It sets out what precisely the code means when its provisions refer to "the court". It gives the Secretary of State the power to make regulations to confer, on specified tribunals, the jurisdiction to deal with functions that the code describes as functions of "the court".
  2. Paragraph 93 makes provision as to which court or tribunal can enforce an agreement under the code or a right conferred by the code.
  3. Since the courts have greater enforcement powers than tribunals (because the courts can impose sanctions for non-compliance with orders), the expectation is that parties will usually seek to enforce agreements and rights conferred by the code in the courts. Further, because the code provides for orders of "the court" (as defined) to take effect as "an agreement" (see for example paragraphs 22, 26(4)(b), 34(8), 44(7)), that agreement may be enforced in any court of competent jurisdiction in the same way as any contract. Accordingly, orders made under those same provisions of the code by a tribunal exercising the functions conferred on "the court" (see paragraph 95 of the code) will also take effect as "an agreement" and will be enforceable in any court of competent jurisdiction in the same way. This is in addition to any other enforcement rules that may apply to tribunal orders (see for example section 27 of the Tribunals, Courts and Enforcement Act 2007).
  4. Paragraph 95 gives the Secretary of State the power to make regulations to confer jurisdiction on the First-tier Tribunal and Upper Tribunal in England, on the Upper Tribunal in Wales, the Lands Tribunal for Scotland, and the Lands Tribunal for Northern Ireland for functions conferred by the code on "the court". Should this power be exercised, references in the code to "the court" will need to be read also as references to the tribunals on which such jurisdiction is conferred.
  5. Paragraph 95(3) enables jurisdiction to be conferred on the tribunals as well as or instead of the court. Where jurisdiction is conferred on more than one body, paragraph 95(3) permits the Secretary of State to make regulations setting out in which court or tribunal proceedings are to be commenced and enabling that court or tribunal to transfer proceedings to another court or tribunal. For example, in relation to England it will be possible for jurisdiction to adjudicate code disputes to be conferred on the First-Tier Tribunal, the Upper Tribunal and the county court.
  6. Paragraph 96 provides that any tribunal on which jurisdiction may be conferred under paragraph 95 shall have a discretion when making awards of costs (expenses in Scotland) and in doing so must have regard in particular to the extent to which a party is successful. The purpose of the provision is to ensure that the approach to costs in the courts (see paragraph 94) is continued after jurisdiction is conferred on tribunals which often, but not always, take this approach. The provision’s intention is to encourage parties to continue to carefully consider their chances of success before litigating a dispute, and incentivise reasonable agreements to be reached without recourse to litigation.
  7. Paragraph 97 refers to regulation 3 of the Electronic Communications and Wireless Telegraphy Regulations 2011 which applies to certain applications to install facilities. Where regulation 3 applies to an application under the code, there is a six-month time limit for determining the application.
  8. Paragraph 98 makes provision in relation to appeals in Northern Ireland.

Part 17: Supplementary provisions

  1. Part 17 contains a number of supplementary provisions, including definitions of terms used elsewhere in the code.
  2. Paragraph 99 provides that the code does not authorise the contravention of any enactment made before the new code comes into force unless such an enactment itself provides otherwise. So for example, nothing in the code authorises an operator, or any other person, to do anything that would be in breach of existing planning legislation, or other legislation.
  3. Paragraph 100(1) concerns the binding quality of agreements made under the code, and whether it is possible to "contract out" out of provisions of the code. Agreements for code rights are final so that once agreed (see Part 2), it is not possible for either party to re-open the agreement. For example if an operator agrees to pay £5,000 for a (consensual) code agreement, the operator (or landowner) cannot then apply to the court to get a better price or improve the accompanying terms that relate to the code right that has been agreed. It is possible to vary an agreement by further agreement (see paragraph 11 of the code).
  4. Paragraph 100(2) ensures that an operator cannot be required by a landowner to agree to exclude the effect of paragraph 99 and Parts 3 to 6 of the code. This is commonly known as a "no contracting out" rule. (There is similar provision in what was paragraph 27(2) of the existing code in Schedule 2 to the Telecommunications Act 1984). Paragraphs 16(1) and 17(5) of the code prevent the possibility that operators could be required to contract out of the automatic upgrading and sharing rights provided by those paragraphs, and the reference in paragraph 100(2) to Part 3 is to ensure consistency between paragraph 100 and those provisions. Part 5 provides for code agreements to continue, notwithstanding the terms of the agreement, and to be terminated only in accordance with the provisions of the code. Part 6 provides for apparatus to be removed only in accordance with the provisions of the code. So paragraph 100(2) ensures that operators cannot be required to contract out of the rights they enjoy under Parts 5 and 6 which are essential to protect networks. In the existing code, what was paragraph 27(2) similarly prevented parties contracting out of what was paragraph 21 of the existing code.
  5. Similarly an operator cannot be required to agree that it will forgo its right to make an application to the court under Part 4 for a different or additional code right (for which it would have to pay additional consideration). For example an operator may have an agreement with a site provider under which the operator is entitled to enter the land to maintain apparatus on terms that it gives at least 72 hours’ notice (see paragraph 3(f) of the code). The operator might later wish to seek a different code agreement, e.g. to enter the land to maintain apparatus giving only 48 hours’ notice. That would be a new right, more onerous for the landowner, which would have to be agreed on further terms, including as to payment. Failing agreement, the operator could apply to the court to be granted the new right. The court would be required to apply the test under paragraph 21.
  6. Paragraph 101. Under general land law, a movable object (a "chattel") that is attached to the land may become, by operation of the law, part of the land (and consequently become the property of the owner of the land) if it has become a "fixture". Paragraph 101 prevents this from happening to apparatus installed on the land by an operator using code rights by providing that property rights in apparatus are unaffected by that apparatus becoming attached to land. A similar provision was contained in what was paragraph 27(4) of the existing code in Schedule 2 to the Telecommunications Act 1984.
  7. Paragraph 102 replicates what was paragraph 15 of the existing code. Its effect is that an operator must have the agreement of the authority with control of a relevant conduit to install apparatus in that conduit (i.e. such rights cannot be ordered by the court under Part 4).
  8. Paragraph 103 obliges Ofcom to publish a code of practice on the operation of the code and suggested (but not mandatory) standard terms for use in code agreements. These may be updated from time to time. Ofcom is required to consult with operators and anyone else it thinks appropriate before it first publishes the code of practice and suggested standard terms.
  9. Paragraph 104 provides that Crown land (meaning, primarily, land owned or leased by the government) is subject to the code in the same way as any other land. It also sets out who has the authority to enter into agreements or grant code rights over various different categories of Crown land.
  10. Paragraph 105 sets out the meaning of "occupier" for the purposes of the code.
  11. Paragraph 106 makes provisions for the Scottish Ministers to make rules for the Lands Tribunal for Scotland in relation to the code.
  12. Paragraph 107 makes provision in relation to arbitration in Scotland.
  13. Paragraph 108 defines other terms used within the code including the definition of land under the code, which excludes electronic communications apparatus, thereby ensuring that code rights cannot be used to confer rights to install electronic communications apparatus on another person’s apparatus. Paragraph 108(2) defines "alteration" of apparatus as including moving, removing and replacing that apparatus.

Schedule 2: The electronic communications code: transitional provision

  1. This Schedule sets out transitional provisions connected with the new electronic communications code in Schedule 1 coming into force. This Schedule provides for agreements made under the electronic communications code set out in Schedule 2 to the Telecommunications Act 1984 (defined for transitional purposes as the "existing code"), and for other rights and matters affected by that code, to transition to the code in Schedule 1 of this Act which Section 4(2) of the Act inserts as Schedule 3A to the 2003 Act (and which is defined for transitional purposes as the "new code"). Further transitional provision may be made by regulations pursuant to Section 5 of the Act.
  2. Paragraph 1 defines key terms used in Schedule 2, including a "subsisting agreement" (an agreement made under paragraph 2 or 3 of the existing code in Schedule 2 to the Telecommunications Act 1984) or an agreement imposed by the court under paragraph 5 of the existing code.
  3. Paragraph 2 provides that on commencement of the new code, subsisting agreements have effect as if made under the new code, save as modified by this Schedule. It also provides that a person bound by a right under the existing code is treated as bound by the corresponding right under the new code.
  4. Paragraph 3 provides that references to a code right in the new code are, in relation to subsisting agreements, to be read as references to the corresponding rights in paragraphs 2 and 3 of the existing code.
  5. Paragraph 4 preserves the effect of paragraph 2(3) of the existing code for transitional purposes as it relates to subsisting agreements. However, because paragraph 2(3) of the existing code has no corresponding provision in the new code, paragraph 7(2) of Schedule 2 (see below) ensures that paragraph 2(3) of the existing code ceases to have effect when the subsisting agreement comes to an end.
  6. Paragraph 5 provides that Part 3 of the new code (the assignment of code rights, upgrading and sharing provisions) does not apply to subsisting agreements, or to rights conferred under the new code that depend on rights under a subsisting agreement. The purpose of this paragraph is to avoid retrospective effect of paragraphs 16 and 17 of the new code.
  7. Paragraphs 6 and 7 make transitional provision in relation to Part 5 of the new code (termination and modification of agreements). The purpose of paragraph 29 of the new code is to delineate when the statutory continuity provisions of Part 5 of the new code apply and when, instead, the continuity regime in the Landlord and Tenant Act 1954, and Business Tenancies (Northern Ireland) Order 1996 applies. Paragraph 6 of Schedule 2 delineates which continuity provisions apply for transitional purposes, and so specifies those subsisting agreements to which Part 5 of the new code will not apply. Paragraph 7(1) provides that (unless excluded by paragraph 6 above) Part 5 of the new code applies to a subsisting agreement, with the modifications set out in paragraphs 7(2) to 7(4). The modification in paragraph 7(2) is made because there is no corresponding provision in the new code to paragraphs 2(2)(c) and (3) of the existing code; and the modification in 7(3) in order to avoid retrospectively applying to a subsisting agreement the 18 month period in paragraph 31(3)(a) of the new code. Paragraph 7(4) ensures that when the court comes to determine the terms of a new agreement it is not required to take into account the consideration payable under the terms of the subsisting agreement. This is so that the basis of consideration, once a new agreement is agreed or imposed under the new code, (see paragraph 24 of the new code) is applied without reference to the consideration agreed under the different provisions of the existing code.
  8. Paragraph 8 concerns rights in relation to street works, flying lines, tidal waters and linear obstacles. Paragraph 8(1) provides that paragraphs 9 to 14 of the existing code dealing with these rights will continue to apply to anything (including works, notice procedures, proceedings, or other matters) already in the process of being done when the new code comes into force. Paragraph 8(2) provides that any apparatus lawfully installed under paragraphs 9 to 14 is to be treated as installed under the corresponding new provisions in the revised code. Paragraph 8(3) sets out the corresponding provisions in the new code.
  9. Paragraph 9 provides that an agreement for the purposes of paragraph 11(2) of the existing code in relation to tidal water or lands in which there is a Crown interest has effect as an agreement for the purposes of paragraph 64 of the new code.
  10. Paragraph 10 provides that agreements under paragraph 15 of the existing code (which relate to certain specified conduits) are treated as having the same effect as if made under the like provision in the new code.
  11. Paragraphs 11 and 12 make transitional provision in relation to notices given under paragraph 5(1) of the existing code (requesting an agreement for rights) and applications to the court for code rights made under the existing code.
  12. Paragraph 13 makes transitional provision in relation to an application or order for temporary code rights made pursuant to paragraph 6 of the existing code.
  13. Paragraph 14 provides that the repeal of the existing code does not affect rights to compensation that arise in relation to matters that occurred before repeal.
  14. Paragraph 15 preserves existing rights and obligations under paragraph 17 (objections to overhead apparatus) and paragraph 18 (obligation to affix notices to overhead apparatus) of the existing code, where the relevant apparatus was installed before the new code comes into force.
  15. Paragraph 16 provides that the repeal of the existing code will not affect rights under paragraph 20 of the existing code (power to require alteration of apparatus) in relation to apparatus installed before the new code comes into force. The effect of paragraph 20 of the existing code is not replicated in the new code, accordingly paragraph 16(1) is intended to ensure that persons who have rights under paragraph 20 of the existing code do not lose them. An exception to this principle is made in paragraph 16(2) for persons who become party to or bound by an agreement under the new code. This is because such persons will in appropriate circumstances (see paragraph 23(8)(b) of the new code) be able to secure rights similar to those in paragraph 20 of the existing code. Paragraph 16(3) makes clear that the exception in paragraph 16(2) applies only to new agreements under the new code and not to a "subsisting agreement" (see paragraph 2 of Schedule 2).
  16. Paragraph 17 provides that Part 12 of the new code (rights to object to certain apparatus) applies only to apparatus installed after the new code comes into force. (See paragraph 15 above in relation to apparatus installed before the new code comes into force).
  17. Paragraphs 18 and 19 make transitional provision in relation to the right to cut back trees that overhang the street and make clear the circumstances in which a contested right to cut back trees is dealt with under the provisions of the existing code.
  18. Paragraph 20. Paragraph 21 of the existing code makes provision for the right to require removal of apparatus (for example when code rights have ceased) and for restrictions on the right to require removal (for example so that the operator may contest removal by applying for new rights). Paragraph 20 of Schedule 2 provides that paragraph 21 of the existing code will continue to apply for transitional purposes if, before the existing code is repealed, a notice requiring removal of apparatus was served under paragraph 21 of the existing code.
  19. Paragraph 21. Paragraph 23 of the existing code and Part 10 of the new code both contain similar rules that apply when the works required by other statutory undertakers affect electronic communications apparatus. Paragraph 21 of Schedule 2 clarifies when the relevant provisions of the existing code, notwithstanding its repeal, will continue to apply to such works.
  20. Paragraphs 22 and 23 are self-explanatory.
  21. Paragraphs 24 to 25 make additional transitional and saving provisions dealing with the giving of notices, avoiding double compensation and other supplementary matters.

Schedule 3: The electronic communications code: consequential amendments

  1. Schedule 3 makes amendments that are consequential on the introduction of the new electronic communications code in Schedule 1. Schedule 3 is in two parts. Part 1 includes an interpretation provision (definitions) and makes provision so that where other enactments make reference to certain paragraphs or terms in the existing code, they are to be read as a reference to the specified corresponding provision of the new code. Part 2 of Schedule 3 provides for specific textual amendments of the enactments listed in Part 2. Further consequential provision may be made in regulations pursuant to Section 6 of the Act.

Schedule 4: Public service delivery: specified persons for the purposes of section 35

  1. Schedule 4 to the Act lists the specified persons who may share information for the purpose of specified objectives under section 35.

Schedule 5: Public service delivery: specified persons for the purposes of sections 36 and 37

  1. Schedule 5 to the Act lists the specified persons with whom gas and electricity suppliers may share information, and from whom they may receive information, for the purpose of assisting people living in fuel poverty.

Schedule 6: Public service delivery: specified persons for the purposes of sections 38 and 39

  1. Schedule 6 to the Act lists the specified persons with whom water and sewerage undertakers may share information, and from whom they may receive information, for the purpose of assisting people living in water poverty

Schedule 7: Specified persons for the purposes of the debt provisions

  1. Schedule 7 to the Act lists the specified persons who are permitted to make use of the power under section 48 to share information in connection with debt owed to a public authority or to the Crown.

Schedule 8: Specified persons for the purposes of the fraud provisions

  1. Schedule 8 to the Act lists the specified persons who are permitted to make use of the power under section 56 to share information for the purposes of taking action in connection with fraud against a public authority.

Schedule 9: Bank of England oversight of payment systems

  1. Part 1 of this Schedule makes amendments to the Banking Act 2009 to allow HM Treasury to formally recognise non-bank payment systems for oversight by the Bank of England.
  2. Paragraph 1 introduces the amendments.
  3. Paragraph 4 amends the definition of "inter-bank payment system" for the purposes of Part 5 of the Banking Act 2009 (with the new defined phrase being just "payment system"). The amendments to section 182(1) in sub-paragraph (2) remove the requirement that a system be designed for transfers between financial institutions in order to be recognised. Sub-paragraph (3) inserts a new subsection (1A) into s.182 of the Banking Act 2009, and clarifies that arrangements for the physical movement of cash do not amount to a payment system for these purposes.
  4. The remaining paragraphs in Part 1 of the amend other provisions of Part 5 of the Banking Act 2009 so that they apply in relation to payment systems as defined in the amended s.182, rather than only to inter-bank payment systems.
  5. Part 2 of the Schedule makes amendments that are consequential on these amendments. It makes consequential amendments to the Financial Services Act 2012 and the Financial Services (Banking Reform) Act 2013

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